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THE RIGHT TO ALTERNATIVE CARE OF CHILDREN WITH DISABILITIES IN ETHIOPIA AND SOUTH AFRICA
By
Meseret Kifle Ande
(Student No: 3107116)
LLB (JIMMA), LLM (UWC)
A thesis submitted in fulfilment of the requirements for the degree Doctor of Law (LLD)
in the Faculty of Law of the University of the Western Cape
PROMOTER:
PROFESSOR BENYAM DAWIT MEZMUR
Professor of Law
University of the Western Cape
February 2020
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DECLARATION
I, Meseret K. Ande, declare that The Right to Alternative Care of Children with Disabilities in
Ethiopia and South Africa is my own work and that it has not been submitted before for any
degree or examination in any other university, and that all sources I have used or quoted have
been indicated and acknowledged as complete references.
Signed: Meseret K Ande
February 2020
The law and information reviewed in this study is stated as at the end of October 2019.
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DEDICATION
To my parents, Tsehay Benti and Kifle Ande.
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ACKNOWLEDGMENTS
I thank God for giving me good health and peace to pursue this noble cause. If any of these
were lacking, I would not have completed this study.
I am deeply grateful to my supervisor, Professor Benyam Dawit Mezmur, for his intellectual
guidance through the drafts and the continuous moral support that the end was in sight. His
unmatched dedication to ensure the successful completion of this study led me to persevere
during the challenging times.
Furthermore, I acknowledge the academic support from the Dullah Omar Institute and the
Faculty of Law through the Doctoral Colloquia, which interrogated the findings of this research
and enabled me to continually improve the study. Special thanks to the respondents and the
doctoral candidates who offered insights, comments and constructive critique on the thesis.
Thank you to all the staff members of the Dullah Omar Institute who contributed in many ways
to the successful completion of this work. I express special gratitude to Debbie, Mandy and
Crystal for their kind assistance during the course of this journey. I also reserve special thanks
to Dr. Robert Nanima and Dr. Usang Maria Assim for their support, guidance and
encouragement.
To my five siblings and two adorable nieces; it is your love and support that gave me the
courage to continue pushing towards the goal. I am also deeply thankful to the Ethiopian
Community that made Cape Town feel like a second home. I extend my gratitude to my friends
and colleagues - Liya, Rediat, Rahwa, Daphine, Diana, Meseret, Shehaam, Alois, Jacob,
Thandeka, Sideen and Nimrod. By no means, is this a conclusive list. Last but not least,
Abdullah– I am forever indebted to you. Thank you for being there for me through thick and
thin.
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ABSTRACT
The importance of a nurturing environment on early child development and the central role that
a family environment plays to this end are widely recognised. However, most children with
disabilities lack family life and parental care and often find themselves disproportionately
represented in the category of children that need alternative care arrangements. The limited
access to family-based alternative care options for children with disabilities deprived of their
family environment is the primary concern of this study. Studies have shown excessive
dependence on institutions as a means to provide care for children with disabilities deprived of
their family environment, despite the overwhelming evidence on the negative effects of
placement in institutions on the development and well-being of children. This contradicts with
a number of rights articulated in international and regional standards dealing with the
alternative care of children in general, and children with disabilities in particular.
This study seeks to examine the extent to which the rights of children with disabilities are
respected in the context of alternative care in two jurisdictions in Africa – Ethiopia and South
Africa. The two countries are State Parties to the applicable international and regional
instruments concerning the alternative care of children with disabilities. These standards
include the Convention on the Rights of the Child, the Convention on the Rights of Persons
with Disabilities, and the African Charter on the Rights and Welfare of the Child. The UN
Guidelines for the Alternative Care of Children and its principles of ‘necessity’ and ‘suitability’
also offer some guidance.
Thus the study aims to identify the gaps in relation to domestic legislative and to some extent,
policy frameworks and makes recommendations with a view to ensuring adequate, focused and
effective legislative frameworks to meet the state’s obligations to guarantee the right to
alternative care of children with disabilities. To this end, the study first critically analyses the
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right to alternative care of children with disabilities and the obligations imposed on South
Africa and Ethiopia by international human rights standards. This is followed by an
examination of the domestic laws and policies of Ethiopia and South Africa pertaining to the
alternative care of children with disabilities to determine their sufficiency in keeping up with
the international standards. Finally, the institutional and administrative measures taken by
South Africa and Ethiopia to uphold the right to alternative care of children with disabilities
are assessed. Based on the discussion in preceding chapters, a conclusion and recommendations
are provided.
The study finds that, the legislative, administrative and institutional frameworks of Ethiopia
and South Africa have positive aspects, as well as gaps that result in both compliance and non-
compliance to certain obligations in international standards.
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Key words: Alternative care; family-based care; institutions; residential care; children with
disabilities; foster care; Convention on the Rights of Persons with Disabilities; Convention on
the Rights of the Child; UN Guidelines for the Alternative care of Children; African Charter
on the Rights and Welfare of the Child
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LIST OF ACRONYMS AND ABBREVIATIONS
ACERWC African Committee of Experts on the Rights and Welfare of the
Child
ACPF African Child Policy Forum
ACRWC African Charter on the Rights and Welfare of the Child
BOLSA Bureau of Labour and Social Affairs (Ethiopia)
BOWCYA Bureau of Women, Children and Youth Affairs (Ethiopia)
CASE Community Agency for Social Enquiry (South Africa)
CDG Care Dependency Grant (South Africa)
CRC Convention on the Rights of the Child
CRC Committee Committee on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
CRPD Committee Committee on the Rights of Persons with Disabilities
CSG Child Support Grant (South Africa)
CSOs Civil Society Organisations
CYCCs Child and Youth Care Centres (South Africa)
DJCD Department of Justice and Constitutional Development
DSD Department of Social Development (South Africa)
DWCPD Department of Women, Children and People with Disabilities
(South Africa)
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EHRC Ethiopian Human Rights Commission
EIO Ethiopian Institution of the Ombudsman
FCG Foster Care Grant (South Africa)
FDRE Federal Democratic Republic of Ethiopia
FHI Family Health International
Geneva Declaration The Geneva Declaration of the Rights of the Child
GHS General Household Survey
GTP Growth and Transformation Plan
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICF International Classification of Functioning, Disability and
Health
IMS Information Management System
ISS International Social Service
MECs Members of the Executive Council (South Africa)
MOJ Ministry of Justice (Ethiopia)
MOLSA Ministry of Labour and Social Affairs (Ethiopia)
MOWA Ministry of Women Affairs (Ethiopia)
MOWCYA Ministry of Women, Children and Youth Affairs (Ethiopia)
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National Guidelines Alternative Childcare Guidelines on Community-Based
Childcare, Reunification and Reintegration Program, Foster Care, Adoption and Institutional
Care Service (Ethiopia)
NAWONGO National Association of Welfare Organisation and Non-
Governmental Organisations (South Africa)
NCP National Children’s Policy (Ethiopia)
NGOs Non-Profit Organisations
NHRIs National Human Rights Institutions
NPA National Plan of Action
NPOs Non-profit Organisations
OAU Organisation of African Unity
OHCHR Office of the United Nations High Commissioner for Human
Rights
OVC Orphans and Vulnerable Children
PEPUDA Promotion of Equality and Prohibition of Unfair Discrimination
Act (South Africa)
RFC Revised Family Code (Ethiopia)
SAHRC South African Human Rights Commission
SALRC South African Law Reform Commission
The 1959 Declaration The Declaration of the Rights of the Child
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The 1986 Declaration The 1986 Declaration on Social and Legal Principles relating to
the Protection and Welfare of Children, with Special Reference to Foster Placement and
Adoption Nationally and Internationally
UDHR Universal Declaration of Human Rights
UN United Nations
UN Guidelines United Nations Guidelines for the Alternative Care of Children
(2009)
UNICEF United Nations Children’s Fund
WHO World Health Organisation
WPRPD White Paper on the Rights of Persons with Disabilities (South
Africa)
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION ........................................................................................................................... 1
1.1 BACKGROUND TO THE STUDY.......................................................................................................... 1 1.2 PROBLEM STATEMENT................................................................................................................... 7 1.3 RESEARCH QUESTIONS .................................................................................................................. 9 1.4 UNDERLYING ASSUMPTION .......................................................................................................... 10 1.5 RESEARCH METHODOLOGY AND CHOICE OF JURISDICTIONS ................................................................. 10 1.6 SCOPE OF THE STUDY .................................................................................................................. 14 1.7 SIGNIFICANCE OF THE STUDY ........................................................................................................ 15 1.8 OUTLINE OF THE STUDY ............................................................................................................... 16
CHAPTER 2: CONCEPTUAL FRAMEWORK FOR THE ALTERNATIVE CARE OF CHILDREN WITH DISABILITIES ..... 18
2.1 INTRODUCTION .......................................................................................................................... 18 2.2 DESCRIBING DISABILITY ............................................................................................................... 19 2.3 DEFINING ALTERNATIVE CARE ....................................................................................................... 23 2.4 FAMILY ENVIRONMENT ............................................................................................................... 28 2.5 FAMILY-BASED ALTERNATIVE CARE SETTINGS ................................................................................... 32
2.5.1 Foster care .................................................................................................................................... 32 2.5.2 ‘Other forms of family-based care’ ............................................................................................... 36
2.6 NON-FAMILY-BASED FORMS OF ALTERNATIVE CARE .......................................................................... 37 2.6.1 ‘Family-like care placements’ ....................................................................................................... 37 2.6.2 Residential care ............................................................................................................................ 38 2.6.3 ‘Residential care’ versus ‘institutions’ ........................................................................................... 40
2.7 THE PRINCIPLES OF NECESSITY AND SUITABILITY ................................................................................ 43 2.7.1 Suitability principle: Determination of the most appropriate care placement............................... 44 2.7.2 The necessity principle: Preventing the need for alternative care ................................................. 47
2.8 CONCLUSION ............................................................................................................................. 49
CHAPTER 3: THE INTERNATIONAL AND REGIONAL LEGAL FRAMEWORK FOR THE RIGHT TO ALTERNATIVE CARE OF CHILDREN WITH DISABILITIES .......................................................................................................... 51
3.1 INTRODUCTION .......................................................................................................................... 51 3.2 CHILDREN’S RIGHT TO ALTERNATIVE CARE BEFORE THE CRC ................................................................ 52 3.3 INTERNATIONAL AND REGIONAL LEGAL FRAMEWORKS AND GUIDELINES ................................................ 55
3.3.1 Convention on the Rights of the Child ........................................................................................... 55 3.3.2 The African Charter on the Rights and Welfare of the Child .......................................................... 55 3.3.3 Convention on the Rights of Persons with Disabilities ................................................................... 57 3.3.4 The UN Guidelines for the Alternative Care of Children ................................................................ 58
3.4 GENERAL STATE OBLIGATIONS UNDER THE PERTINENT STANDARDS ....................................................... 59 3.5 GENERAL PRINCIPLES OF MOST OF THE INTERNATIONAL STANDARDS ..................................................... 61
3.5.1 Non-discrimination ....................................................................................................................... 64 3.5.2 The best interests of the child ....................................................................................................... 71 3.5.3 The right to life, survival and development................................................................................... 78 3.5.4 Child participation ........................................................................................................................ 80
3.6 AN ANALYSIS OF THE CRC, ACRWC AND CRPD .............................................................................. 87 3.6.1 Children with disabilities under the CRC........................................................................................ 87
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3.6.2 Children with disabilities under the ACRWC .................................................................................. 90 3.6.3 Children with disabilities under the CRPD ..................................................................................... 91
3.7 THE RIGHT TO ALTERNATIVE CARE: ANALYSIS OF THE CRC, ACRWC AND CRPD..................................... 98 3.7.1 Children deprived of their family environment ............................................................................. 99 3.7.2 Special protection and assistance ............................................................................................... 101 3.7.3 Alternative care under the CRC, ACRWC and UN Guidelines ....................................................... 103 3.7.4 Alternative care under the CRPD ................................................................................................ 112
3.8 THE OBLIGATION TO REVIEW PLACEMENTS PERIODICALLY ................................................................. 119 3.9 CONCLUSION ........................................................................................................................... 123
CHAPTER 4: ETHIOPIA’S AND SOUTH AFRICA’S LEGISLATIVE AND POLICY FRAMEWORKS FOR THE RIGHT TO ALTERNATIVE CARE OF CHILDREN WITH DISABILITIES ................................................................................. 126
4.1 INTRODUCTION ........................................................................................................................ 126 4.2 DOMESTIC INCORPORATION OF INTERNATIONAL HUMAN RIGHTS STANDARDS ...................................... 127 4.3 THE LEGISLATIVE FRAMEWORKS OF SOUTH AFRICA AND ETHIOPIA ..................................................... 131
4.3.1 Non-discrimination ..................................................................................................................... 132 4.3.2 The best interests of the child ..................................................................................................... 138 4.3.3 Child participation ...................................................................................................................... 144 4.3.4 The right to life, survival and development................................................................................. 149 4.3.5 Alternative care .......................................................................................................................... 152
4.3.5.1 Foster care........................................................................................................................................... 158 4.3.5.2 Child and Youth Care Centre ................................................................................................................ 162
4.3.6 The obligation to undertake periodic review of placement in alternative care ........................... 166 4.3.7 Provisions dedicated to the rights of children with disabilities.................................................... 167
4.4 OTHER MEASURES .................................................................................................................... 173 4.4.1 South Africa’s White Paper on the Rights of Persons with Disabilities ........................................ 173 4.4.2 The National Alternative Care Guidelines of Ethiopia ................................................................. 176 4.4.3 Ethiopia’s National Children’s Policy ........................................................................................... 182 4.4.4 General Observations ................................................................................................................. 183
4.5 CONCLUSION ........................................................................................................................... 184
CHAPTER 5: INSTITUTIONAL AND ADMINISTRATIVE MEASURES FOR THE UPHOLDING OF THE RIGHT TO ALTERNATIVE CARE OF CHILDREN WITH DISABILITIES IN ETHIOPIA AND SOUTH AFRICA ............................. 188
5.1 INTRODUCTION ........................................................................................................................ 188 5.2 ETHIOPIA’S AND SOUTH AFRICA’S INSTITUTIONAL AND ADMINISTRATIVE FRAMEWORK .......................... 191
5.2.1 Monitoring mandate and coordinating mechanisms .................................................................. 191 5.2.2. Independent monitoring mechanisms........................................................................................ 200 5.2.3 Data collection ........................................................................................................................... 205 5.2.4 Financial and human resources .................................................................................................. 213 5.2.5 The role of civil society organisations (CSOs) .............................................................................. 224
5.3 CONCLUSION ........................................................................................................................... 231
CHAPTER 6: CONCLUSION AND RECOMMENDATIONS ................................................................................ 233
6.1 INTRODUCTION ........................................................................................................................ 233 6.2 CONCLUSIONS ......................................................................................................................... 234 6.3 RECOMMENDATIONS ................................................................................................................ 245
6.3.1 Ethiopia ...................................................................................................................................... 245 6.3.2 South Africa ................................................................................................................................ 250
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BIBLIOGRAPHY .................................................................................................................... 254
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Chapter 1: Introduction
1.1 Background to the study
Children with disabilities in Africa are among the most marginalised groups in society.1
Generally, they face barriers in realising their human rights and lack access to basic services
including education and health care.2 In many African countries, giving birth to a child with a
disability is shrouded in misconceptions that disability is retribution for sinful behaviour, or a
result of witchcraft or demonic intervention.3 Consequently, children with disabilities face a
higher risk than other children of abandonment and being hidden from public view.4
Accordingly, they are often not registered at birth.5 The lack of registration poses a long-lasting
challenge, as it effectively excludes them from exercising their rights as citizens.6
In particular, children with disabilities are at a higher risk than children without disabilities of
being deprived of their family environment and placed in alternative care.7 The root of the
problem lies in the stigma and discrimination associated with having a child with a disability,
1 See generally African Child Policy Forum (ACPF) The lives of children with disabilities in Africa: A glimpse into a hidden world (2011a); WHO & UNICEF Early Childhood Development and Disability: A Discussion Paper (2012) 14. 2 ACPF (2011a); ACPF The African report on children with disabilities: Promising starts and persisting challenges (2014) 29; ACPF Children with Disabilities in Africa: Challenges and Opportunities (2011b); ACPF Educating children with disabilities: Ethiopia (2011c); Ransom B Missing voices: Children with disabilities in Africa (2009); UNICEF Innocenti Research Centre Promoting the Rights of Children with Disabilities (2007) 1. 3 ACPF (2011b) 34; ACPF (2011a) 42; ACPF (2014) 29. 4 Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child (2007) 285. 5 ACPF (2011b) 34; Sabatello M ‘Children with disabilities: A critical appraisal’ (2013) 21 International Journal of Human Rights 469. 6 ACPF (2011b) 34–5. UNICEF Every Child’s Birth Right – Inequities and Trends in Birth Registration (2013) 6. 7 United Nations Towards a World Free from Violence: Global Survey on Violence Against Children (2013); Lang-Holmen P ‘In the blind spot: Documenting the situation of children without parental care or at risk losing it’ (2016) 20 available at http://bit.ly/2SR510Y (accessed 14 May 2017); UNICEF, Christian Aid & Islamic Relief A Matter of Belonging: How Faith-Based Organisations Can Strengthen Families and Communities to Support Orphans and Vulnerable Children (2006) 9; Rimmerman A ‘Out-of-home placement of children with intellectual disabilities: The need for a family support Policy’ in Herr S, Gostin L & Koh H (eds) The Human Rights of Persons with Intellectual Disabilities: Different but Equal (2003) 415; Tolfree D Roofs and Roots: The Care of Separated Children in the Developing World (1995) 55.
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which force some parents to abandon or give away their child at birth.8 Moreover, poor
availability of inclusive basic services and lack of psychological support within communities
undermines parents’ confidence and ability to care for a child with a disability and thus
heightens the risk of children with disabilities being placed in alternative care.9
Deprivation of family environment exposes children to the risk of violation of their
internationally recognised rights, including the right to life, survival and development, and to
be free from violence, abuse and exploitation and discrimination.10 What is more, for children
with disabilities who are deprived of their family environment, research suggests that their
access to family-based alternative care options, such as foster care and adoption, is not equal
to that enjoyed by children without disabilities.11 This is evident in the fact that a number of
countries have embarked on deinstitutionalisation initiatives and managed to find family-based
alternatives for the majority of children – except in the case of children with disabilities, where
alternatives such as foster care services have been neither designed nor equipped to care for
them.12 This has been linked to, among other factors, the limited resources devoted to training
and preparing potential foster carers and the lack of necessary support services.13 Another
factor that generally plays a role in the limited availability of family-based care is the paucity
of support for it by those involved in financing alternative care, including governments and
8 WHO & the Gulbenkian Global Mental Health Platform Promoting Rights and Community Living for Children with Psychosocial Disabilities (2015) 25; Ransom (2009) 30. 9 UNICEF Innocenti Research Centre (2007)17; International Social Service (ISS) & SOS Children’s Villages International ‘Safeguarding the rights of children with disabilities in alternative care’ (2012) 1 available at http://bit.ly/2MTHxV4 (accessed 17 June 2015); Clements, Luke J & Read J Disabled People and the Right to Life: The Protection and Violation of Disabled People’s Most Basic Human Rights (2008) 212. 10 Delap E, Georgalakis J & Wansbrough-Jones A Missing: Children without parental care in international development policy (2009) 5; Hodgkin & Newell (2007) 280. 11 Better Care Network & EveryChild ‘Enabling Reform: Why supporting children with disabilities must be at the heart of successful child care reform’ (2012) 19–21 available at http://bit.ly/2MUUUEA (accessed 20 April 2015); Tolfree (1995) 55; Cousins J ‘Disability still taboo in family placement?’ (2009) 33(2) Adoption and Fostering 6; Hodgkin & Newell (2007) 285. 12 Family for Every Child ‘Strategies for delivering safe and effective foster care: A review of the evidence for those designing and delivering foster care programmes’ (2015) 33 available at http://bit.ly/37BVSxg (accessed 29 September 2016). 13 EveryChild & Better Care Network (2012) 19–21; ISS & SOS Children’s Villages International (2012) 1; Family for Every Child (2015) 33.
3
international donors, owing to the complexity of developing new infrastructure and child
protection systems.14 The limited child protection options in some countries have led some to
argue that a halt on institutional care ‘will do more harm than good to vulnerable children’.15
The absence of equal access to family-based alternative care and lack of support for developing
such care in most countries have meant that the most widely available form of alternative care
for children with disabilities is placement in institutional care.16 Numerous studies report that
children with disabilities are disproportionately represented in institutions and that in most
countries family-based alternatives such as foster care are not available.17 A recent report by
the United Nations (UN) on children deprived of liberty reveals that one in three children in
institutions is a child with a disability.18 It estimates that in 2018 the total number of children
placed in institutions ranged from 3.5 to 5.5 million.19 The study further reveals at least 1.3 to
1.5 million children, including children with disabilities are deprived of liberty every year, the
majority of whom (430,000–680,000) are found in institutions.20 In many states, once children
14 Csaky C Keeping children out of harmful institutions – Why we should be investing in family-based care (2009) 11; Pinheiro P World Report on Violence against Children (2006)186. 15 Berens AE & Nelson CA ‘The science of early adversity: Is there a role for large institutions in the care of vulnerable children?’ (2015) 386 The Lancet 395. 16 EveryChild & Better Care Network (2012) 11–14; UNICEF At Home or in a Home? Formal Care and Adoption of Children in Eastern Europe and Central Asia (2010) 27. 17 Mulheir G ‘Deinstitutionalisation – A human rights priority for children with disabilities’ (2012) 9 The Equal Rights Review 117 and 130; UNICEF The State of the World’s Children 2013: Children with Disabilities (2013) 46; UNICEF, Christian Aid & Islamic Relief (2006) 9; WHO et al. (2015) 22; UNICEF (2010) 27; Pinheiro (2006) 185. 18 United Nations General Assembly (UNGA) Global Study on Children Deprived of Liberty (UN Doc. A/74/136, 2019) available at http://bit.ly/37Aua43 (accessed 30 June 2019) para 31. 19 UNGA Global Study on Children Deprived of Liberty (2019) para 62. Nonetheless, such figures have been deemed to be an underestimation of the actual number, as many countries lack such data given the large of numbers of unregistered institutions. Early estimates of the number of children placed in institutions globally range from 2 million to 8 million. UNICEF Progress for Children: A Report Card on Child Protection Number 8 (2009); Pinheiro (2006) 183; Barriga SR, Buchanan J, Ćerimović E et al. ‘Children with disabilities: Deprivation of liberty in the name of care and treatment’ in Protecting Children against Torture in Detention: Global Solutions (2017). 20 UNGA Global Study on Children Deprived of Liberty (2019) paras 62 and 86. However, the estimate covered only children who are deprived of their liberty in institutions de jure (children placed in institutions by an order of judicial or administrative authority), and did not include children who are deprived of their liberty in institutions de facto. As such, the study acknowledges that the total number of children deprived of their liberty in institutions may well be much higher.
4
are placed in institutions, particularly in non-state institutions run by private actors, they fall
off the radar of those states.21
In responding to children with disabilities deprived of their family environment, a one-size-
fits-all approach will not suffice, as all alternative care options come with their own strengths
and weaknesses. Thus, determining the best form of alternative care for a given child with a
disability requires taking into account the pros and cons of each form of alternative care, while
bearing in mind his or her short- and long-term needs and circumstances. However, setting
aside that alternative care settings might differ in living conditions and caregiving environment,
research has proven that almost all aspects of development are significantly affected by
placement in institutions.22 Children placed in institutions have been found to suffer from
stunted social and interpersonal development, attachment disorders, and delayed language
development and cognitive functioning.23 They also have limited opportunities for
rehabilitation, and are often exposed to abuse, neglect and lack of individualised attention.24
Further evidence of the negative effects of institutions on children is contained in the latest
global report on children deprived of their liberty, which emphasises that institutions are
inherently detrimental to children.25 The study underscores the point that institutions should
not be used as a means to ‘provide care, protection, education, rehabilitation or treatment’ for
children, as such settings cannot replace the benefits that growing up in family or family-type
settings within the community offers.26
21 UNGA Global Study on Children Deprived of Liberty (2019) para 61. 22 Petrowski N, Cappa C & Gross P ‘Estimating the number of children in informal alternative care: challenges and results’ (2017) 83 Child and Abuse Neglect, The International Journal 389. 23 Petrowski et al. (2017) 389; Mulheir (2012) 120–21. 24 EveryChild & Better Care Network (2012) 4; Pinheiro (2006) 183; Hodgkin & Newell (2007) 284. 25 UNGA Global Study on Children Deprived of Liberty (2019) para 64. 26 UNGA Global Study on Children Deprived of Liberty (2019) para 65.
5
Institutional care is said to be particularly damaging to children under the age of three years.27
Research has also shown that children who are placed in institutional care before the age of six
months face long-term developmental setbacks.28 Institutional settings, even ones that are
clean, properly managed and adequately resourced, pose higher risks to the life and health of
children than family-based settings do.29 Furthermore, although in rare cases institutional care
may serve to fulfil the physical needs of children, it does not provide the individual attention
and ‘family-quality emotional nurture and interpersonal bonding’ that are critical for normal
child development.30
The effect on children with disabilities of the loss of family environment and
institutionalisation may be particularly grave owing to the heightened vulnerability associated
with their impairment.31 In this respect, children with disabilities are reported to suffer even
more from physical neglect and violence than other institutionalised children.32 Research also
suggests that in some instances an institutional regimen can cause further disabilities or
aggravate existing ones.33 Children with disabilities in institutional settings often do not receive
quality basic services such as education, health and rehabilitative services due to a lack of
standards or to inadequate monitoring and enforcement of standards where they do exist.34
These findings are consistent with the growing consensus on the central role that a family
environment plays in the development and well-being of children.35 Numerous empirical
27 OHCHR Regional Office for Europe ‘The rights of vulnerable children under the age of three: Ending their placement in institutional care’ (2012) 17 available at http://bit.ly/39H7zEH (accessed 15 May 2016). 28 OHCHR Regional Office for Europe (2012) 17. 29 UNICEF (2013) 42. 30 Carlson RR ‘A child’s right to a family versus a State’s discretion to institutionalise the child’ (2016) 47 Georgetown Journal of International Law 939; UNICEF (2013) 42; Bartholet E ‘International adoption: The child’s story’ (2012) 24 Georgia State University Law Review 346–47. 31 ISS & SOS Children’s Villages International (2012) 1; Better Care Network & EveryChild (2012) 14–5. 32 OHCHR Regional Office for Europe (2012) 19; UNICEF (2010) 27; Mulheir (2012) 120. 33 Tolfree (1995) 58–9; Better Care Network & EveryChild (2012) 4; UNICEF (2013) 46; Mulheir (2012) 120. 34 UNICEF (2013) 42. 35 John Bowlby theorised this in the 1950s via the notion of ‘attachment’. The theory of attachment stresses the importance of a primary caregiver for the healthy development of a child and the negative effects of institutional care in comparison with family-based care. Much empirical evidence has supported this theory. Bowlby J
6
studies in various disciplines stress the importance of a nurturing environment in early child
development and the value that quality of parenting and stable emotional bond with at least one
care-giver have in improving child well-being outcomes.36 Studies have also found that when
children are removed from an institution and placed into a family-based environment, whether
with biological families or foster or adoptive families, they make significant improvements in
terms of their ‘intellectual functioning and attachment patterns, reduced signs of emotional
withdrawal, and reduced prevalence of mental health conditions’.37 Across any measure,
children have a better chance of developing fully in a family-based alternative care setting than
in the best institutional setting.38
In the light of this evidence, it is safe to argue that, for children with disabilities who are
deprived of their family environment, family-based alternative care is the best option for their
survival and development. However, contrary to the human rights model of disability and
despite agreements in international standards that institutional care should be used only as a
last resort, the literature shows that disability is often a predictor of institutionalisation.
Attachment and Loss: Attachment (1969). The importance of the family environment for the well-being of children has been further stressed in Williamson J & Greenberg A Families, not orphanages (2010) Better Care Network available at http://bit.ly/2sLYv0R (accessed 22 November 2015); Browne K The Risk of harm to young children in institutional care (2009); Csaky (2009); Carlson (2016) 939. 36 See for instance, Browne (2009); Williamson & Greenberg (2010); Csaky (2009); Johnson R, Browne K, Hamilton-Giachritsis C ‘Young children in institutional care at risk of harm’ (2006) 7 Trauma, Violence & Abuse; Mulheir (2012); EveryChild & Better Care Network (2012). 37 Johnson et al. (2006); Barriga et al. (2017); Martin FS & Zulaika G ‘Who Cares for children? A descriptive study of care-related data available through global household surveys and how these could be better mined to inform policies and services to strengthen family care’ (2016) 3 Global Social Welfare 51–2. 38 The Bucharest Early Intervention Project compared the development of children placed in large-scale institutions with that of those placed in non-residential care settings and in foster care. This was done by assessing the overall development of children placed in large-scale institutions in Romania and integrating some of those children into foster care. The findings were alarming in that the development of children who remained in institutional care was far more likely to have been delayed or stunted in terms of physical, social, emotional and cognitive functioning. By contrast, children who were placed into foster care from institutional care before the age of 2 years made significant developmental gains. OHCHR Regional Office for Europe (2012)18; Carlson (2016) 939.
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1.2 Problem statement
Although a large body of evidence has illustrated that institutions are harmful to children and
underlined the importance of growing up in a family or an environment that resembles a family
environment, there is a lack of clarity as to what the term ‘institution’ entails. Coming up with
a clear-cut definition of the term ‘institution’ is difficult. Various sources have attempted to do
so by describing what is known as ‘institutional culture’.39
The Convention on the Rights of the Child (CRC)40 uses the qualifying phrase ‘if necessary’
before prescribing placement of children in ‘suitable institution’ as a potential form of
alternative care. The African Charter on the Rights and Welfare of the Child (ACRWC)41
employs the phrase ‘alternative family care’ to be provided to children in need of alternative
care but it also allows placement in ‘suitable institutions’.42 The UN Guidelines for the
Alternative Care of Children (UN Guidelines)43 equates institutions to ‘large residential care
facilities’ and requires such settings to be gradually eliminated.44 The Convention of the Rights
of Persons with Disabilities (CRPD) neither explicitly prohibits nor allows institutional care as
a form of alternative care for children with disabilities deprived of their family environment. 45
39 Cantwell N, Davidson J, Elsley S, et al. Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children (2012) 34; UNICEF & Inter-American Commission on Human Right & Organization of American States The Right of Boys and Girls to a Family: Alternative Care. Ending Institutionalization in the Americas (2013) 137; Csáky C Why Care Matters: The importance of adequate care for children and society (2014) 6; Pinheiro (2006) 176. In section 2(6)(3) of Chapter 2 of this thesis, a definition of the term ‘institutions’ has been adopted for the purposes of this thesis. 40 UN Convention on the Rights of the Child (adopted 20 November 1989) (entered into force September 1990) (hereafter CRC), art 20. 41 Organisations of African Unity (OAU) African Charter on the Rights and Welfare of the Child (adopted 1990) (entered into force 29 October 1999) (hereafter ACRWC), art 25. 42 See art 20(3) of the CRC and art 25(2) (a) of the ACRWC. 43 UN Guidelines for the Alternative Care of Children (UN Doc. A/RES/64/142, 2009) (hereafter UN Guidelines). 44 UN Guidelines, para 23. 45 UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006) (entered into force 3 May 2008) (hereafter CRPD), art 23(5).
8
Rather, it requires alternative care to be provided ‘within the wider family, and failing that,
within the community in a family setting’.46
However, in stark contrast to the above and the CRC, ACRWC and the UN Guidelines, the
Committee on the Rights of Persons with Disabilities (CRPD Committee) in its General
Comment No. 5 on children with disabilities’ right to live independently and be included in the
community has taken a firm stand in stating that neither small-group homes nor large-scale
institutions promote the rights of children to be included in the community and, indeed, are
harmful for children, for ‘whom there is no substitute for the need to grow up with a family’.47
The Committee asserts that ‘[f]or children, the core of the right to live independently and be
included in the community entails a right to grow up in a family’.48
Thus, it can be observed that there is a divergence in the obligations imposed on states by
international standards regulating the alternative care of children with disabilities deprived of
their family environment. Both Ethiopia and South Africa have ratified the relevant standards
dealing with the right to alternative care of children with disabilities – namely, the CRC,
ACRWC and CRPD.49
Against the background above, this study first establishes a framework for the right to
alternative care of children with disabilities by assessing the different, and at times conflicting,
obligations imposed on Ethiopia and South Africa by the CRC, ACRWC and CRPD. The study
thereafter examines whether the legislative frameworks of Ethiopia and South Africa are in
46 See art 23(5) of the CRPD. 47 UN Committee on the Rights of Persons with Disabilities (hereafter CRPD Committee) General Comment No. 5 ‘Article 19: Living Independently and Being Included in the Community’ (2017) (UN Doc CRPD/C/18/R) (hereafter CRPD Committee, GC No. 5 (2017), para 16(c). 48 CRPD Committee GC No. 5 (2017) para 37. 49 Ethiopia ratified the CRC and the CRPD in 1991 and 2010 respectively. South Africa ratified the CRC and the CRPD in 1995 and 2007 respectively. United Nations, Office of the High Commissioner ‘UN treaty body database’ available at https://bit.ly/2GVpavA (accessed 15 February 2016). Ethiopia and South Africa ratified the ACRWC in 2002 and 2000 respectively. African Committee of Experts on the Rights and Welfare of the Child (ACERWC) ‘Ratifications table’ available at https://bit.ly/2TMcRt9 (accessed on 15 February 2016).
9
line with minimum standards and adequate to ensure that children with disabilities have equal
access to family-based alternative care options when they find themselves deprived of a family
environment and in need of alternative care.
1.3 Research questions
This study seeks to investigate the problem relating to the limited access to family-based
alternative care options for children with disabilities deprived of their family environment in
Ethiopia and South Africa. It doing so, it examines whether South Africa’s and Ethiopia’s
legislative frameworks are adequate to ensure the rights of children with disabilities deprived
of their family environment to be provided with family-based alternative care. The main
research question is this: To what extent are Ethiopia and South Africa complying with their
obligations under international child-rights law to provide children with disabilities with
alternative care? The sub-questions to be explored are the following:
• What are the obligations imposed on states by the international standards (the CRC,
ACRWC and CRPD) in relation to the right to alternative care of children with
disabilities, what are the implications of discrepancies or synergies across these
instruments, and what minimum standards can be derived?
• To what extent are the national legislative frameworks of Ethiopia and South Africa in
compliance with current international human rights standards for the realisation of the
rights of children with disabilities in the context of alternative care?
• What are the administrative and institutional measures that Ethiopia and South Africa
have taken to uphold the right to suitable alternative care for children with disabilities?
10
1.4 Underlying assumption This thesis assumes that if Ethiopia’s and South Africa’s legislative, administrative and
institutional frameworks comply with international and regional standards dealing with the
rights of children with disabilities to alternative care, children with disabilities who are
deprived of their family environment will enjoy equal access to family-based alternative care
options.50
The primary aim of this study is to determine the sufficiency of the domestic legislative,
administrative and institutional measures taken by Ethiopia and South Africa in upholding of
the rights of children with disabilities in the context of alternative care vis-à-vis international
standards. The study aims to identify the gaps in the two countries’ frameworks which impede
children with disabilities from equal access to family-based alternative care options and to offer
recommendations to ensure adequate, focused and effective legislative frameworks to meet the
state’s obligations in this respect.
1.5 Research methodology and choice of jurisdictions
To answer the central question posed above, this study adopts a number of methodologies. The
main one entails desk review of literature, including both primary and secondary sources,
relevant to the subject of discussion. The study consists of international law (both ‘soft’ law
and ‘hard’ law) as well as national laws (composed of constitutions, acts, case law, and so
forth). In the former category are conventions and charters, resolutions, declarations, general
comments, and State Party reports under the various international and regional human rights
instruments. The study will be based on secondary sources as well, which include books,
journals, and academic articles.
50 For a detailed discussion on the international and regional legal framework for the right to alternative care of children with disabilities, see Chapter 3 of this thesis.
11
Two countries have been chosen for this study: Ethiopia51 and South Africa.52
Methodologically, the intention is not to compare, in the strict sense, the two jurisdictions in
terms of their laws, policies and practices. Rather, it is to map the contrasting and common
features of their legal frameworks on the alternative care for children with disabilities vis-à-vis
international standards. In other words, these selected jurisdictions are used in a supplementary
fashion to mirror African countries’ experiences. The study is not intended either to be a
thorough assessment of the laws and practices of the chosen countries; instead, the countries
are used to augment discussion in this study. The experiences of a number of other countries
(both African and otherwise) are also referred to when necessary.
The choice of countries was made on the basis of a combination of thematic, substantive, and,
to a lesser extent, practical factors. As a common feature, these countries experience high levels
of orphanhood,53 HIV/AIDS54 and poverty,55 which in turn has led to the existence of a large
51 A recent UNICEF report estimated the total population of Ethiopia at 98,665,000 in 2019, based on a Central Statistical Agency (CSA) 2019 calculated projection (2007–2037). The percentage of the population below the age of 19 amounted to 49.6 per cent of the total population; about 38.7 per cent are children below the age of 15. UNICEF & Ministry of Finance National Situation Analysis of Children and Women in Ethiopia (2019) XV; CSA Population Projections 2007–2037 (2013); UNICEF & Ministry of Women and Children Affairs (MOWCA) Ethiopia: Children Fact Sheet (2018). 52 In mid-2019, the total population of South Africa was estimated at 58.78 million, about 17 million of which were children aged 0–14 years old – close to a third of the total population – and about 4.6 million of which were children 15–19 years old. Statistics South Africa (Stats SA) Mid-Year Population Estimates (2019). 53 A recent report reveals that in Ethiopia 1 in 10 children under the age of 18 does not live with a biological parent, with 7 per cent of such children being single or double orphans. UNICEF & Ministry of Finance (2019) 80. It is also reported that Ethiopia has the largest orphaned population in the world: five million children were found to be orphans and vulnerable children (OVC). Petersen S ‘Exploring ethical dilemmas in development practices linked to intercountry adoption: An Ethiopia-Australia case study (2011) 3 Australian Journal of Adoption 2. Save the Children Sweden Regional Office for Eastern and Central Africa ‘A study on child protection mechanisms in Ethiopia’ (2010) 2 available at http://bit.ly/2N07Adl (accessed 15 June 2015). South Africa, by comparison, had, in 2017, an estimated 2.8 million orphans who had lost one or both parents. Hall K & Sambu W ‘Demography of South Africa’s children’ in Hall K, Richter L, Mokomane Z et al. South African Child Gauge 2018: Children, Families and the State (2018) 134. 54 In South Africa, mid-year population estimates in 2019 indicated that 13.5 per cent of the total population is HIV-positive. Stats SA (2019) v. 55 In Ethiopia, 1 in 4 residents, which amounts to 24 million people, is categorised as absolutely poor. Among these are children, who are found to be poorer than adults, with 32.4 per cent of children under 18 having been found monetarily poor in 2011 compared with 29.6 per cent of adults. Furthermore, persons with disabilities are disproportionately affected by poverty. Persons with disabilities who live in extreme poverty in urban areas are estimated at 41 per cent of all urban poor. Children with disabilities are particularly vulnerable as they represent 27 per cent, the highest rate of extreme poverty. UNICEF & Ministry of Finance (2019) 10 and 14.
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number of children without parental care and in need of alternative care.56 In Ethiopia, the need
for alternative care options for vulnerable children is growing,57 an increase which has
contributed to the emergence of many new institutions formed by non-state actors, among them
faith-based ones.58 This rise in the number of institutions has overlapped with the global
recognition of the negative effects of institutionalisation on the child’s physical, emotional, and
cognitive development.59 However, the development of family-based alternative care options
has not grown at the same pace.60 The level of integration of services for children with
disabilities remains poor. A study observed that the needs of children with disabilities remain
unnoticed by agencies providing community-based care and that only half (54.3 per cent) of
those agencies included services for children with disabilities.61 The problem is exacerbated by
the stigma and discrimination attached to children with disabilities62 as well as by the lack of
disability-friendly service provision within the community.63 A significant over-representation
of children with disabilities in institutions due to scarce options is thus evident. It has been
noted that the number of children with intellectual disabilities in institutional care is higher
than those with other disabilities.64
56 South African Human Rights Commission (SAHRC), Department of Women, Children and People with Disabilities (DWCPD) & UNICEF South Africa’s Children: A Review of Equity and Child Rights (2011); Family Health International (FHI), UNICEF, Ministry of Women’s Affairs, & Child Investment Fund Foundation Improving care options for children (2010) 31; Save the Children Sweden Regional Office for Eastern and Central Africa (2010); UNICEF ‘Alternative childcare’ Thematic Briefing Note (2013) 1 available at https://uni.cf/2MYtA8s (accessed 02 May 2015). 57 The growth in the number of children without parental care and in need of alternative care arises from many contributory factors, including poverty, HIV/AIDS, natural disasters, internal migration and the breakdown of family structures. Disability has been cited as one of these factors. FHI et al. (2010) 10; Save the Children Sweden Regional Office for Eastern and Central Africa (2010) 2; Lemma M (2012); UNICEF (2014) 1. 58 FHI et al. (2010) 10. 59 FHI et al. (2010) 10. 60 UNICEF ‘Alternative childcare’ Thematic Briefing Note (2013) 1 available at https://uni.cf/2MYtA8s (accessed 02 May 2015). 61 Tadele G, Ayode D, Kifle W Assessment of community and family-based alternative child-Care services in Ethiopia (2013) 2 available at http://bit.ly/2N05cmV (accessed 26 April 2015). 62 Tadele et al. (2013) 2. 63 UNICEF & Ministry of Finance (2019) 14. 64 Intellectual disability in particular is misunderstood in Ethiopia, where it is seen as a major burden on the family. ACPF Children with disabilities in Ethiopia: The hidden reality (2011d) 7.
13
In South Africa, there is limited commitment to investing in the development of systems to
monitor family-based alternative care, which in turn has led to the proliferation of and
preference for ‘children’s homes’ to care for children deprived of their family environment.65
Furthermore, children with disabilities are more likely than children without disabilities to be
orphaned and 10 times more likely to be placed in institutions.66 However, the quality and
safety of institutions, the frequency with which children are placed, and the long-term duration
of their placements have raised concerns.67 In particular, many of the facilities are found to be
unequipped to care for children with disabilities or ensure their integration into society.68 For
instance, ramps for wheelchairs were available only in a quarter of all registered centres.69 The
incidence in institutions of sexual assault and abuse of children with disabilities is also found
to be very high, with 80 to 85 per cent of criminal abuse of children never being reported to the
authorities.70 In this regard, NGOs in the field of disability have expressed major concerns
about the high level of abuse of children with disabilities in institutions.71
65 Delap et al. (2009) 28. 66 In South Africa, it has been found that 1 in every 4 children with disabilities does not have one or both parents, whereas for children without disabilities the ratio is 1 in 5. Stats SA Community Survey 2007 (2008); Department of Social Development (DSD) White Paper on the Rights of Persons with Disabilities (2015) 98. The cause of this disparity remains unclear; it is argued, however, that given that HIV/AIDS is still prevalent in the country, children whose disability was caused by the epidemic are more prone to losing their parents. At the time of Census 2001, children with disabilities were found to be over-represented among children placed in institutional care, with 1 in 5 children being a child with a disability. DSD, DWCPD and UNICEF Children with Disabilities in South Africa: A Situation Analysis: 2001–2011 (2012) 31 and 50. Another survey found that children with disabilities accounted for 28 per cent of the 13,000 children staying in registered child and youth care centres. Community Agency for Social Enquiry (CASE) Baseline Study on Registered Child and Youth Care Centres (2010). 67 Jamieson L ‘Children’s rights to appropriate alternative care when removed from the family environment: A review of South Africa’s child and youth care centres’ in Proudlcok P (ed) South Africa’s Progress in Realising Children’s Rights: A Law Review (2014) 233. 68 DSD, DWCPD and UNICEF (2012) 12 and 51; Martin P Analysis of the children’s sector in South Africa (2015) 56. 69 Jamieson (2014) 239. Among children with disabilities living in institutions, those between the age 15–17 were found to higher in number (9.7 per cent) than those between the age 0–4 (1.2 per cent). Moreover, children with multiple disabilities are over-represented among children with disabilities living in institutions. DSD, DWCPD and UNICEF (2012); Martin (2015) 50. 70 DSD, DWCPD & UNICEF (2012); Martin (2015) 53. 71 Lansdown G Disabled children in South Africa progress in implementing the Convention on the Rights of the Child (2002) 14.
14
A further reason for choosing the two countries is that both have ratified the international
standards pertinent to the right to alternative care for children with disabilities (the CRC,
ACRWC and CRPD). Both have reported to the African Committee on the Rights and Welfare
of the Child (ACERWC), the Committee on the Rights of the Child (CRC Committee) and the
CRPD Committee. Furthermore, both countries were active in the development of the UN
Guidelines and are currently implementing them.
1.6 Scope of the study
The scope of the study is limited geographically, as it focuses on Ethiopia and South Africa.
However, where relevant and available, experience from elsewhere (especially other African
countries) will be used to substantiate arguments and clarify points. It is not assumed that the
two countries in the study do justice to the diversity of the African experience when it comes
to alternative care for children with disabilities; nonetheless, it is safe to say that the main issues
pertaining to alternative care for children with disabilities in Africa are similar and that the
discussion of the two countries under study is generally applicable to other African countries.
The scope of the study is also limited to investigating alternative care measures for children
with disabilities, particularly foster care and residential care (adoption is referred to as a
potential outcome of alternative care, rather than a form of alternative care).72 As a result, other
types of alternative care are not a concern of the enquiry. Given that state intervention is
required in relation to formal alternative care placements, the scope of this study is also limited
to investigating such form of care as opposed to informal ones.
72 This is in accordance with the UN Guidelines. UN Guidelines (2009), para 30 (b).
15
The study further focuses on the legislative measures undertaken by the two jurisdictions, while
other measures, such as policy measures, are discussed only in so far as they are directly
relevant to the alternative care of children with disabilities.
Moreover, the scope of this study is limited to issues related to the provision of alternative care
rather than prevention of the need for it. Thus, the study deals only with children with
disabilities who for whatever reason are found to be in need of alternative care, and focuses on
investigating the measures that have been put in place to ensure that children with disabilities
deprived of their family environment and in need of alternative are provided with family-based
alternative care. Thus, issues related to the prevention of alternative care for children with
disabilities do not feature prominently in this thesis, unless where it is deemed relevant.
Furthermore, in the light of the fact that Ethiopia has a federal system of government, this thesis
limits itself to a detailed analysis of the federal laws.
1.7 Significance of the study
This study serves to help locate gaps in domestic policy and legislative frameworks, in addition
to which it makes recommendations to ensure adequate, focused and effective legislative
frameworks to meet the state’s obligations in relation to measures on alternative care for
children with disabilities. It also highlights important lessons for other African countries with
similar situations to those in Ethiopia and South Africa, and aims to inspire further research in
this area. Although various studies have brought up the issue of over-representation of children
with disabilities in institutional care, the current study is distinctive for addressing it
specifically through a rights-based approach applied to the context of South Africa and
Ethiopia.
16
1.8 Outline of the study
This study consists of six chapters. Chapter 1, the current chapter, introduces the thesis and sets
out the background to the study, the research methodology, the significance of the study, and
related background information that provides general guidance on the research.
Chapter 2 examines the conceptual framework for the alternative care of children with
disabilities. It looks into definitions and concepts surrounding the term ‘alternative care’. It
also examines forms of alternative care, with a focus on foster care and residential care. This
chapter discusses key principles in the UN Guidelines, namely the principles of ‘necessity’ and
‘suitability’, and contextualises them so that they have meaning for children with disabilities.
The chapter also discusses the term ‘disability’ as well the various models identified by
scholars to understand the concept.
Chapter 3 establishes the legal basis of the right to alternative care for children with disabilities,
which other chapters will subsequently use to adjudge the extent to which Ethiopia, and South
Africa are ensuring the rights of children with disabilities in the context of alternative care.
The main instruments that receive attention are the ACRWC, CRC and CRPD.
Chapter 4 focuses on the national legislative framework relevant for the alternative care of
children with disabilities in the selected jurisdictions of Ethiopia and South Africa, and
critically analyses whether those frameworks are in compliance with international and regional
obligations pertaining to the alternative care of children with disabilities.
Chapter 5 critically assesses the adequacy of the institutional and administrative measures that
Ethiopia and South Africa have taken to the uphold the right to alternative care of children with
disabilities deprived of their family environment.
17
The final chapter, Chapter 6, provides a conclusion and recommendations based on the
discussion in the preceding chapters.
18
Chapter 2: Conceptual Framework for the Alternative Care of
Children with Disabilities
2.1 Introduction
This chapter seeks to clarify concepts pertinent to the alternative care of children with
disabilities. It thus aims to enable clearer understanding of the scope and framework of the
concepts used in this thesis and explain how different alternative care settings are understood
in different contexts. The chapter commences by exploring the concept of ‘disability’, and
discusses the three prominent models of disability identified by scholars in examining the lens
through which the term is understood, and implication for, the alternative care of children with
disabilities. It further unpacks what is meant by ‘alternative care’ and discussing the conceptual
differences that are evident in the international human rights standards dealing with the right
to alternative care of children with disabilities. The chapter also discusses the concept of
‘family environment’, as it is pivotal for grasping children with disabilities’ right to alternative
care. Thereafter, it looks in more detail at forms of alternative care individually; in doing so, it
identifies the distinctive features of family-based alternative care options, in particular foster
care and ‘other forms of family-based care’. The content of the various non-family-based
alternative care options, including ‘family-like care placements’ and residential care as
specified in the UN Guidelines, is also examined. In respect of non-family-based alternative
care, this chapter differentiates between ‘residential care’ and ‘institutions’. The two core
principles stipulated in the UN Guidelines, those of necessity and suitability, are also discussed.
As mentioned already, the prevention of the need for alternative care for children with
disabilities does not form part of this chapter, given that the scope of the thesis is limited to the
provision of alternative care for children with disabilities and does not include issues related to
the need to prevent recourse to it (prevention). Thus, with regard to the necessity and suitability
19
principles in the UN Guidelines, this thesis places more emphasis on the suitability principle,
as the former deals with the prevention of alternative care rather than the provision of
alternative care, which is the focus of this thesis.
2.2 Describing disability
The question of disability and who may be considered a person with a disability has long been
disputed.1 In conceptualising disability, three prominent frameworks have been identified by
scholars. These models include the medical model, social model and human rights model of
disability. They encompass all aspect of life and reveal how disability is perceived in a given
society and consequently how persons with disabilities are treated and to what extent they are
afforded protection.2
A central element of the medical model is that disability is a condition that needs to be cured
and treated, with the ultimate goal of bringing persons with disabilities to a state of normalcy,
similar with those without disabilities.3 This model identifies the individual’s impairment as
the problem, and results in the person with a disability being viewed as deficient or defective.4
Hence, this model seeks to address the cause of the disabling condition through medical
interventions, including the treatment and rehabilitation of the person in order to reverse or
1 Traustadóttir R ‘Disability studies, the social model and legal developments’ in Arnardóttir OM & Quinn G (eds) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (2009) 8. 2 Grobbelaar-du Plessis I & Van Eck S ‘Protection of disabled employees in South Africa: An analysis of the Constitution and Labour Legislation’ in Grobbelaar-du Plessis I & Van Reenen T (eds) Aspects of Disability Law in Africa (2011) 233. 3 Grobbelaar-du Plessis I & Van Reenen T ‘Introduction to aspects of disability law in Africa’ in Grobbelaar-du Plessis & Van Reenen (eds) (2011) xxiii; Degener T ‘A new human rights model of disability’ in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 42; Lawson A ‘The United Nations Convention on the Rights of Persons with Disabilities: new era or false dawn?’ (2006) 34 Syracuse Journal of International Law and Commerce 571. 4 Grobbelaar-du Plessis & Van in Grobbelaar-du Plessis & Van Reenen (eds) (2011) xxiv; Areheart BA ‘When disability isn’t “just right”: The entrenchment of the medical model of disability and the Goldilocks Dilemma’ (2008) 83 Indiana Law Journal 185–86; Kanter S ‘The globalisation of disability rights law’ (2003) 30 Syracuse Journal of International Law and Commerce 243.
20
prevent the condition.5 Within the ambit of this model, a person’s impairment is further used
to justify the exclusion of children with disabilities and the creation of separate systems, as
well as ‘specialised’ institutions for them to receive services.6 Examples of such segregated
facilities include special schools for children with disabilities and placement in institutional
care.7 This is done on the grounds that providing services in separate facilities is best suited to
serve their ‘specialised needs’.8 The medical model of disability further views persons with
disabilities as mere recipients of welfare, health and charity programmes as opposed to subjects
of rights.9 Unfortunately, a number of international human rights declarations arose from this
premise, and thus emphasise the prevention of disability and rehabilitation of persons with
disabilities.10
Conversely, the social model of disability follows a more integrated approach which recognises
the contributory role that ‘extrinsic factors’ play in the ‘creation of disability’.11 It recognises
that an ‘individual’s ability to function’ is determined by social and environmental barriers.12
Hence, in contrast to the medical model, the social model of disability shifts the focus away
from the individual’s impairment and acknowledges the environmental and social strictures
that construct disability.13 Elements of the social model of disability at policy level are
integration, equal opportunity and non-discrimination of persons with disabilities.14
5 Areheart (2008) 186; Lawson (2006) 571. 6 Degener (2017) 42; Stein MA ‘Disability human rights’ (2007) 95 California Law Review 86. 7 Degener (2017) 42; Stein (2007) 86. 8 Combrinck H ‘The hidden ones: Children with disabilities in Africa and the right to education’ in Sloth- Nielsen J (ed) Children’s Rights in Africa: A Legal Perspective (2008) 301. 9 Combrinck (2008) 301. 10 An example of this is the 1950 resolution of the Economic and Social Council on Social Rehabilitation of the Physically Handicapped.As will be shown in ss 3(6)(1) and 3(6)(2) of Chapter 3 of this thesis, the provisions dedicated to the rights of children with disabilities under the CRC and ACRWC, also reflect the medical model of disability. 11 Stein (2007) 86; Jere V ‘The right to equality in the workplace for persons with physical disabilities in Malawi: Does the Convention on the Rights of Persons with Disabilities offer any hope?’ in Grobbelaar-du Plessis & Van Reenen (eds) (2011) 164. 12 Grobbelaar-du Plessis & Van in Grobbelaar-du Plessis & Van Reenen (eds) (2011) xxv; Stein (2007) 86. 13 Traustadóttir (2009) 3. 14 Combrinck (2008) 301.
21
While the medical and social models of disability have been presented as contradictory
concepts in understanding disability, the International Classification of Functioning, Disability
and Health (ICF)15 adopts what is known as the ‘bio-psycho-social model’, comprising
elements of both models.16 In terms of the ICF, disability is conceptualised as a ‘dynamic
interaction between health conditions and contextual factors, both personal and
environmental’17 and it is said to occur at three levels; an impairment in body function or
structure, a limitation in activity and a restriction in participation.18
Most importantly, the human rights model, which is closely associated and often used
interchangeably with the social model of disability,19 recognises that all human beings,
irrespective of their disabilities, are equal and have inalienable rights.20 This model places
emphasis on the ‘inherent dignity of the human being and subsequently, but only if necessary,
on the person’s medical characteristics’.21 One of the distinct features of the human rights
model is that it offers principles for disability policy that emphasises the inherent dignity of
persons with disabilities unlike the social model of disability that simply explains how
disability is ought to be understood.22 The main aim of the human rights model of disability is
transforming societies to be more inclusive, and to respect the dignity and equality of all human
beings regardless of differences.23 Within the framework of this model, persons with
disabilities are viewed as subjects of legal rights and members of communities.24 In terms of
15 WHO ‘The International Classification of Functioning, Disability and Health: children and youth version’ (2007). 16 WHO & World Bank ‘World report on disability’ (2011) 4. 17WHO & World Bank (2011) 4. 18 WHO & World Bank (2011) 4. 19 Retief M & Letšosa R ‘Models of disability: A brief overview’ (2018) 74 Theological Studies 5. 20 Jere (2011) 165. 21 Quinn G & Degener T Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 14. 22 Degener (2017) 43. 23 Quinn & Degener (2002) 15. 24 Kanter A ‘The promise and challenge of the United Nations Convention on the rights of persons with disabilities’ (2006-2007) 34 Syracuse Journal of International Law and Commerce 291.
22
this model, the ‘problem’ lies in the failure of state and non-state actors’ to take the necessary
actions to overcome socially engineered barriers in order to ensure that all human beings enjoy
equal rights and their dignity is valued.25
In the context of alternative care, the over-reliance on institutions as a means of caring for
children with disabilities is an indication of the discrimination and social exclusion that
children with disabilities face and the prevalence of the medical model.26 The routine
institutionalisation of children with disabilities is believed to be ‘inherently influenced by the
medical model of disability’.27 As mentioned above, this model of disability places the problem
with the child and the family, a diagnosis it uses to justify children with disabilities’ exclusion
and placement in institutional care under the guise of providing ‘special care’.28 The human
rights-based model of disability, by contrast, is about removing barriers that impede the
inclusion and participation of children with disabilities in their own communities, and does not
allow the exclusion of children with disabilities on any grounds.29 The placement of children
with disabilities in institutional care is certainly against the essence of the human rights model
of disability.30
None of the international human rights standards discussed in this thesis contain a definition
of disability. However, in respect of the conceptualisation of disability in the CRPD, it has been
argued that it ‘goes beyond the social model of disability and codifies a human rights model of
25 Jere (2011) 165. 26 UNICEF At Home or in a Home? Formal Care and Adoption of Children in Eastern Europe and Central Asia (2010) 7; Pinheiro P World Report on Violence against Children (2006) 87 and 176; Family for Every Child ‘Strategies for delivering safe and effective foster care: A review of the evidence for those designing and delivering foster care programmes’ (2015) 185. 27 Jackson MA ‘Models of disability and human rights: Informing the improvement of built environment accessibility for people with disabilities at neighbourhood scale?’ (2018) 7 Laws 4; Brisenden S ‘Independent living and the medical model of disability’ (1986) 1 Disability, Handicap and Society 173. 28 UNICEF (2010) 7. 29 UN Committee on the Rights of Persons with Disabilities (hereafter CRPD Committee) General Comment No. 5 ‘Article 19: Living Independently and Being Included in the Community’ (2017) (UN Doc CRPD/C/18/R) (hereafter CRPD Committee, GC No. 5 (2017) para 60. 30 WHO & the Gulbenkian Global Mental Health Platform Promoting Rights and Community Living for Children with Psychosocial Disabilities (2015) 25.
23
disability.’31 While the drafting history of the CRPD indicates that there was a debate on
whether to a definition should be adopted, it was ultimately agreed that it should not be
included.32 Given the complex nature of the concept, it was felt that including a definition
might limit the scope of the Convention’s application.33 The CRPD does however include a
description of the term persons with disabilities in its article 1 which includes
those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.34
In this manner, the CRPD adopts an open-ended description of disability to allow those
involved in its interpretation and implementation to accommodate differing conceptualisations
of disability as they evolve overtime and in different sociocultural contexts.35 This position is
also evident in its Preamble which recognises that disability is ‘an evolving concept’ and
underlines the fact that ‘disability results from the interaction between persons with
impairments and attitudinal and environmental barriers that hinder their full and effective
participation in society on an equal basis with others’.36 For the purpose of this thesis, the terms
‘persons with disabilities’ and ‘children with disabilities’ are to be understood in accordance
with article 1 of the CRPD.
2.3 Defining alternative care
Alternative care is not defined in the pertinent international instruments, that is, the ACRWC,
CRC, CRPD and UN Guidelines.37 Furthermore, it can be observed that there is considerable
31 Degener (2017) 42. 32 Item 12 of the Report of the third session of the Ad Hoc Committee (A/AC.265/2004/5). 33 Fina VD ‘[Article 1: Purpose]’ in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 95; Sixth session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Disabilities. 34 CRPD, art 1. 35 Jere (2011) 164–65. 36 CRPD, Preamble (e). 37 To explore the meaning and scope of concepts related to the alternative care of children with disabilities, this chapter relies strongly on the UN Guidelines. However, the UN Guidelines are a non-binding international
24
conceptual difference as to what triggers a child’s right to alternative care in these instruments.
On the one hand, in the UN Guidelines a child without parental care is defined as a child ‘not
in the overnight care of at least one of their parents, for whatever reason and under whatever
circumstances’.38 Hence, according to the UN Guidelines, the loss of ‘parental care’ is what
sets off the child’s right to alternative care.39 On the other hand, the ACRWC and CRC require
that alternative care be provided to a child ‘temporarily or permanently deprived of his or her
family environment’40 whereas the CRPD requires that children with disabilities whose
‘immediate family’ are unable to care for them be provided with alternative care.41 However,
no definition is provided of the terms ‘family environment’ or ‘immediate family’ in the
respective standards. The terms ‘family environment’ and ‘family’ are dynamic concepts which
are influenced by cultural and social factors.42 The meaning of the term ‘parental care’ is
relatively less contested, albeit that the term ‘parent’ can be contentious in some cultural and
legal contexts.43
Although there is no clear-cut definition of ‘alternative care’, the UN Guidelines divide it into
two categories, namely formal and informal alternative care.44 Informal alternative care is a
type of care arrangement that obtains between two individuals on an informal basis without the
involvement of competent authorities.45 Notwithstanding that informal care is provided without
instrument and as such do not have legal or binding force on states or any other parties. This is evident in the fact that the principles of the Guidelines are formulated using ‘should’ in lieu of ‘shall’ or ‘must’, except in cases where they refer to rights that already recognised, particularly those in the CRC. Cantwell N, Davidson J, Elsley S, et al. Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children (2012) 20. 38 This does not include children who are deprived of their liberty because they were in conflict with the law, or who have chosen to stay with relatives or friends of their own accord rather than because their parents were unable or unwilling to provide them with adequate care. UN Guidelines, paras 29(a) and 30(a) and (c). 39 UN Guidelines, para 3; Assim U Understanding Kinship Care of Children in Africa: A Family Environment or an Alternative Care Option? (unpublished LLD thesis, University of the Western Cape, 2013) 135. 40 See art 20 of the CRC and art 25 of the ACRWC. 41 CRPD, art 23(5) provides: ‘States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting’ (emphasis added). 42 Roby JL, JD, MSW, et al. Children in informal alternative care (2011) 9. 43 Roby et al. (2011) 9. 44 UN Guidelines, para 29(b)(i) and (ii). 45 UN Guidelines, para 29(b)(i).
25
the intervention of the state, the UN Guidelines stress the duty of states to protect children in
informal care.46 As for formal alternative care, the UN Guidelines define it as
all care provided in a family environment which has been ordered by a competent administrative body or judicial authority, and all care provided in a residential environment, including in private facilities, whether or not as a result of administrative or judicial measures.47
Depending on the environment where the care is offered, alternative care may be categorised
as kinship care, foster care, ‘other forms of family-based placements’, ‘family-like care
placement’, residential care, or supervised independent living arrangements.48 Formal care can
be provided or arranged by the state or private actors (faith-based organisations, NGOs, and
any other private agencies).49 As mentioned in Chapter 1, this thesis is concerned only with the
categories of formal settings considered in the UN Guidelines, in particular, foster care (non-
kin) and residential care.50 Therefore, kinship care, whether formal or informal, is not discussed
in this chapter.
The UN Guidelines provide definitions for the various formal alternative care settings for
children deprived of their ‘parental care’.51 However, some of the forms of alternative care
settings are not defined in the UN Guidelines, making it difficult to grasp what is meant by
‘other forms of family-based placements’ or ‘family-like’ placements; the difference between
foster care and ‘other family-based placements’; the difference between residential care and
‘institutions’; and whether ‘family-like’ placements are in any way different to residential care.
46 UN Guidelines, para 18. 47 UN Guidelines, para 29(b)(ii). 48 UN Guidelines, para 29(c)(i)–(v). 49 Cantwell et al. (2012) 32; Petrowski N, Cappa C & Gross P ‘Estimating the number of children in informal alternative care: challenges and results’ (2017) 83 Child and Abuse Neglect, The International Journal 390. 50 See s 1(6) of Chapter 1, where the scope of this thesis is demarcated. 51 See UN Guidelines, para 29 b(i)–(v).
26
Similarly, in regard to the definitions of alternative care settings in the UN Guidelines, it would
not be advisable to treat them as conclusive and unassailable concepts.52 This is partly because
from a global position, various factors have informed the concept of formal alternative care
across different societies.53 These factors include historical, political, economic, religious,
social and legal factors leading to divergent alternative care settings across the globe.54 For
instance, the distinction between what is considered formal and informal care in the UN
Guidelines is not clear in some contexts, where ‘foster care’ and ‘adoption’ may refer to entirely
informal arrangements that would be more commonly regarded as kinship care.55 Conversely,
in other settings, including in South Africa, formal care arrangements include ‘kinship’ (or
‘relative’) foster care involving state intervention, where children are looked after by friends,
relatives or kin.56 Similarly, terms used to refer to residential care do not always reflect the
diversity of such settings in their nature, size and purpose.57 In particular, the term ‘institution’
is equated with ‘residential care’ in most countries,58 whereas ‘residential care’ is a blanket
term encompassing a broad range of settings that include family-like care settings, small-group
homes and large facilities.59
There are two important points to highlight in terms of the category of formal alternative care
settings in the UN Guidelines. The first is that legally recognised adoption is considered not a
52 Cantwell et al. (2012) 34; Chaitkin S, Cantwell N, Gale C, et al. Towards the right care for children: Orientations for reforming alternative care systems Africa, Asia, Latin America (2017) 8. 53 Cantwell N ‘The Human Rights of Children in the Context of Formal Alternative Care’ in Reynaert D, Lembrechts S & Desmet E, Routledge International Handbook of Children’s Rights Studies (2015) 258. 54 Petrowski et al. (2017) 391; Cantwell N ‘The Human Rights of Children in the Context of Formal Alternative Care’ in Reynaert D, Lembrechts S & Desmet E, Routledge International Handbook of Children’s Rights Studies (2015) 258. 55 Chaitkin et al. (2017) 7. 56 Delap E & Melville L Fostering better care: Improving foster care provision around the world (2011) 8. 57 Chaitkin et al. (2017) 7. 58 Chaitkin et al. (2017) 7. 59 Chaitkin et al. (2017) 7.
27
form of alternative care but a permanent care arrangement equivalent to parental care.60
Adoption is regarded as a potential outcome for children in formal or informal alternative care
for whom reintegration with the family is not deemed feasible or is contrary the best interests
of the child but who would benefit from living in another ‘permanent’ family.61 However, a
child who is placed with prospective adoptive parents on a probationary basis is considered to
be in alternative care.62 Moreover, the pre-adoption period is also regarded as a form of
alternative care, and thus the Guidelines remain applicable in such cases.63 Following the UN
Guidelines’ approach, for the purpose of this thesis adoption is not considered a form of
alternative care. However, reference to adoption cannot be dismissed altogether from
discussion of alternative care measures, given the intricate bond between the two.64 Thus,
bearing in mind that adoption is a potential outcome of alternative care, this thesis will make
reference to it when referring to options of family-based alternative care for children with
disabilities.
The second point is that any placement in residential facilities is regarded as a formal
alternative care placement, irrespective of by whom the placement was carried out.65 This is
mainly because residential care should be provided by the state, or in principle, should be
subject to registration and authorisation.66
60 See UN Guidelines para 30(b), which provides that ‘[c]are by adoptive parents from the moment the child concerned is effectively placed in their custody pursuant to a final adoption order, as of which moment, for the purposes of the present Guidelines, the child is considered to be in parental care’. 61 UN Guidelines, para 161. 62 UN Guidelines, para 30(b). 63 UN Guidelines, para 30(b). 64 Cantwell N ‘The human rights of children in the context of formal alternative care’ in Vandenhole W, Desmet E, Reynaert D, et al (eds) Routledge International Handbook of Children’s Rights Studies (2015) 257–58. 65 UN Guidelines, para 29(b)(ii). Chaitkin et al. (2017) 7–8. 66 Chaitkin et al. (2017) 7–8; Better Care Network, Family for Every Child, International Social Service, et al. Identifying basic characteristics of formal alternative care settings for children (2013) 5 available at http://bit.ly/35vS8fg (accessed 18 March 2017)
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2.4 Family environment
Another term key to demarcating the scope of the right to alternative care is the concept of
‘family environment’. As mentioned, the ACRWC and CRC require that alternative care is be
provided to a child who is ‘temporarily or permanently deprived of his or her family
environment’,67 whereas the CRPD requires that a child with a disability whose ‘immediate
family’ is unable to care for him or her be provided with alternative care.68 Under international
law, three intersecting concepts with regard to the family are used interchangeably: ‘family’,
‘family life’ and ‘family environment’.69 The latter is a new concept initially introduced by the
CRC and subsequently adopted by the ACRWC.70 In the CRC and ACRWC, reference is made
to both ‘family environment’ and ‘family’.71 These three concepts appear ‘to cover common
ground and protect similar interests’.72
In respect of the meaning of the terms ‘family’ or ‘family environment’, however, none of the
human rights instruments discussed in this thesis define them. In fact, while all the prominent
human rights standards contain provisions that directly and indirectly recognise and provide
protection to the family, none of them defines the term ‘family’.73 Attempts were made to find
a universally acceptable and sufficiently comprehensive definition of the term ‘family’, but
without success.74 The absence in the CRC of a definition of the concept of ‘family’ was
intentional – the drafters sought to focus on the role and function of the family and leave the
67 CRC, art 20(1) and ACRWC, art 25(2)(a). 68 CRPD, art 23(5). 69 Van Bueren G The International Law on the Rights of the Child (1995) 69. 70 Assim (2013)105–6. 71 See, for instance, CRC, Preamble, arts 5, 9, 10, 16, 20 and 22. See also ACRWC, Preamble, arts 10, 17, 18 and 19. 72 Moyo PT The Relevance of Culture and Religion to the Understanding of Children’s Rights in South Africa (unpublished LLM thesis University of Cape Town, 2014) 18. 73 Moyo (2014) 15. 74 Alen A, Bosly H, Bie MD et al. (eds) The UN Children’s Rights Convention: Theory Meets Practice (2007) 390.
29
definitional issues to states’ discretion75 in recognition of the fact that family is a dynamic
concept76 and the existence of different interpretation of the term in various socio-cultural
contexts.77
It can be observed from the Travaux Preparatoires of the CRC that at some stages of the
drafting process, the terms ‘natural family environment’ and ‘parental care’ were used
interchangeably,78 indicating that the link between family environment and parental care was
not yet clearly established at that stage. However, during the working group session, the term
‘deprived of parental care’ was considered but challenged by delegates who regarded the term
as narrow as it did not take into consideration the broader concept of kinship relations found in
many cultures.79 After weighing a number of recommendations, including ‘normal family
environment’, ‘natural family environment’ and ‘biological family’, the term ‘family
environment’ was ultimately chosen.80
75 Okon E ‘Towards defining the “right to a family” for the African Child’ (2012) 2 African Human Rights Law Journal 387; Mezmur BD Intercountry Adoption in an African Context: A Legal Perspective (unpublished LLD thesis, University of the Western Cape, 2009) 156. This resonates with the approach adopted by the Human Rights Committee (HRC), mandated to monitor the implementation of the International Covenant on Civil and Political Rights (ICCPR), in the way it refrains from assigning a single definition to the concept of ‘family’, thereby taking into account the diversity of ways in which the concept is understood worldwide and even within a given country. UN Human Rights Committee (HRC) CCPR GC No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouse (1990) para 2. 76 Van Bueren G ‘The International protection of family members’ rights as the 21st century approaches’ (1995) 17 Human Rights Quarterly 733. 77 Okon E ‘Towards defining the “right to a family” for the African child’ (2012) 2 AHRLJ 377. The absence of a single definition of ‘family’ is also due to the emergence of a variety of family configurations, including child-headed households. Some of the other factors impeding the definition of ‘family’ are the rise in the number of unmarried couples with children, the increase in rates of divorce and re-marriage, and the decrease in the number of legal marriages. 78 See the working text as adopted by the 1980 Working Group. The text employs both terms, that is, ‘deprived of parental care’ and ‘deprived of his natural family environment’, in the same provision. Detrick S (ed) The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires (1992) 297. 79 Detrick (1992) 300; for a detailed discussion of the drafting process, see 298–301. 80 Other changes made by the 1989 Working Group included the addition of kafalah to the list of possible forms of alternative care. The qualifying phrase ‘if necessary’ preceding ‘placement in suitable institutions’ was also inserted at this stage. In addition, the term ‘alternative family care’ was replaced by ‘alternative care’. Cantwell N & Holzscheiter A ‘A commentary on the United Nations Convention on the Rights of the Child article 20: Children deprived of their family environment’ in Alen, A et al (eds) A Commentary on the United Nations Convention on the Rights of the Child (2008) para 53; Detrick (1992) 300 and 304.
30
Cantwell and Holzscheiter point out that the decision finally to adopt the term ‘deprived of his
or her family environment’ indicates an attempt to widen the scope of the term beyond parental
care and a recognition of the impracticality of attempting to provide a single definition of the
family.81 In view of the intention of the drafters of the CRC not to constrain the concept of
‘family’ only to ‘parents’, it has been argued that children who are looked after by a member
of an extended family do not fall within the scope of article 20 and that states are thus not under
any obligation to ensure alternative care for these children even though they are not in the care
of their parents.82
Despite the absence of a definition for the term ‘family environment’ in the CRC, the
Committee on the Rights of the Child (CRC Committee) follows a flexible approach in
determining what the terms ‘family’ and ‘family environment’ constitute, taking into account
the fact that a family assumes different forms in different parts of the world.83 The CRC
Committee, in its General Day of Discussion on the ‘Role of the Family in the Promotion of
the Rights of the Child’, stated:
When considering the family environment the Convention reflects different family structures arising from the various cultural patterns and emerging familial relationships. In this regard the Convention refers to the extended family and the community and applies to situations of nuclear family, separated parents, single parent family, common law family and adoptive family.84
The CRC Committee reaffirmed this position in its Day of General Discussion on Children
without Parental Care held in 2005,85 as it did in General Comment No. 7, stating that the term
‘family’ denotes not just the nuclear family but the extended family and members of the
81 Cantwell & Holzscheiter (2008) 32. 82 Cantwell & Holzscheiter (2008) 37. 83 Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child (2007) 76; Mezmur (2009) 160. 84 UN Committee on the Rights of the Child (CRC Committee), Day of General Discussion: Role of the family in the promotion of the rights of the child (1994) para. 2.1. 85 CRC Committee, Day of General Discussion ‘Children without parental care’ (2005) para 644.
31
community (in some instances).86 Similarly, some scholars have sought to draw the widest
definition possible from article 5 of the CRC and use it as the reference point for interpretation
throughout the treaty.87 It has been argued that the inclusion in article 5 of the CRC of ‘the
members of the extended family or community as provided by local custom’ reflects the
context of the use of the notion of ‘family environment’ under article 20 of the CRC.88
In this respect, the validity of considering article 5 of the CRC an ‘umbrella’ provision has been
questioned, however.89 One of the reasons is that even though such broad interpretation is well-
suited to article 5, which concerns only specific duties – ‘to provid[e] appropriate direction and
guidance in the exercise by the child of the rights recognised’ – applying the same definition
throughout the Convention might not be ideal for the protection of children’s rights in other
instances.90 In the context of article 20, as mentioned above, applying the broader definition of
‘family environment’ might mean that state intervention is not required under the CRC if a
child without parental care is looked after informally within the extended family.91 This in turn
would put the protection of the child in informal care at risk and the role of the state unknown.92
Consequently, the need to stipulate a more restricted list of duty-bearers has been pointed out
on the ground that it would be inappropriate to use a ‘blanket application’ of the wider
definition of the term ‘family environment’ in the context of article 20 by acknowledging the
potential vulnerability of children in informal care.93
86 CRC Committee, General Comment No. 7 ‘Implementing child rights in early childhood’ (2005) para 15. 87 Alen et al. (2007) 391; Detrick (1992) 98; Mezmur (2009) 160. 88 Detrick S “Family rights” under the United Nations Convention on the Rights of the Child’ in Lowe N & Douglas G (eds) Families across Frontiers: Facts, Conflicts, and Trends (1996) 98. 89 Mezmur (2009) 161. 90 Cantwell & Holzscheiter (2008) 34–5. 91 Cantwell & Holzscheiter (2008) 37. 92 Alen et al. (2007) 396. 93 Alen et al. (2007) 391.
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The ACRWC does not, however, provide any further clarification of the notion of the ‘family’,
nor is there an equivalent provision to article 5 of the CRC in the ACRWC to help interpret the
concept.94
2.5 Family-based alternative care settings
2.5.1 Foster care
The term ‘foster care’ is defined differently from one country to another.95 Nevertheless, it is
imperative to have a clear understanding of what the term entails; what distinguishes ‘foster
care’ from other forms of alternative care; and the safeguards included for children. In most
African countries, the term ‘foster care’ is open to a variety of interpretations96 that do not
always correspond to the definition in the UN Guidelines or the common meaning attached to
the term in more developed countries, namely the legal placement of a child within a family
other than its biological family.97
In the same vein, the terms ‘foster care’ and ‘fostering’ represent diverse types of care
arrangements in different countries.98 The word ‘fostering’ has been used in some contexts to
generally describe substitute family placement.99 In West Africa, for instance, both the words
‘fostering’ and ‘foster care’ are used to refer to informal traditional care arrangements that
involve the deliberate act of parents placing their child into another family without any state
intervention and regardless of kinship bonds.100 This type of arrangement is known as
94 Alen et al. (2007) 391. 95 South African Law Commission (Project 110) Report on the Review of the Child Care Act (2002); Williamson J & Greenberg A Families, not orphanages (2010) 17 available at http://bit.ly/2sLYv0R (accessed 22 November 2015). 96 Williamson & Greenberg (2010) 17. 97 UN Guidelines, para 29(c)(ii) 98 Williamson & Greenberg (2010) 17; Tolfree D Roofs and Roots: The Care of Separated Children in the Developing World (1995) 257. 99 Tolfree (1995) 257. 100 Williamson & Greenberg (2010) 18; Tolfree (1995) 257.
33
‘spontaneous’ or ‘informal’ fostering.101 The term ‘fostering’ is also used incorrectly to
describe ‘sponsored children’, which is not an accurate reflection of the relationship between
the child and the sponsor.102
In other contexts, the term ‘fostering’ refers to an ‘agency-arranged’ placement of a child
within the extended family network.103 Along the same lines, ‘formal’ or ‘agency’ fostering is
the term used to refer to the placement of children in the care of others as initiated by an agency
that assumes the responsibility of regularly overseeing such placement.104 This form of care is
increasingly an alternative to residential care; however, research suggests that it is not common
practice in sub-Saharan countries. In many African countries, the use of formal foster care for
children deprived of their family environment as a substitute for institutional care is either in
its early stages or non-existent.105 Conversely, informal fostering is prevalent in the region. In
the two countries examined in this thesis, however, formal foster care is considered appropriate
for children deprived of their family environment; while South Africa is one of the few African
countries where formal foster care is prevalent,106 in Ethiopia, too, it is ‘found to be an
acceptable form of alternative care and readily fits into current cultural practices’.107
Formal foster care can be short-term, medium-term or long-term.108 It is commonly used for a
certain period of time, that is, until a child can be reintegrated with his or her parent, legally
adopted, or attains adulthood.109 In some contexts, foster care is generally long-term and similar
101 Tolfree D Facing the Crisis: Supporting Children through Positive Care Options (2005) iv. 102 Tolfree (1995) 257. 103 Tolfree 1995) 257. 104 Tolfree (2005) iv. 105 Engle PL, Groza VK, Groark CJ, et al ‘The situation of children without parental care and strategies for policy change’ (2011) 76 Monographs of the Society for Research in Child Development 197. 106 Engle et al. (2011) 197. 107 Family Health International (FHI), UNICEF, Ministry of Women’s Affairs, & Child Investment Fund Foundation Improving care options for children in Ethiopia through understanding institutional care and factors driving institutionalization (2010)15. 108 Cantwell et al. (2012) 33. 109 Williamson & Greenberg (2010) 17.
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to adoption.110 In the South African context, it is commonly considered a temporary alternative
care arrangement and does not necessarily involve the transfer of parental responsibility or
terminate the rights of biological parents.111 It is regarded as the favourable option for children
for whom remaining in parental care, reunification and adoption are not possible.112 In terms
of the Children’s Act 38 of 2005, foster care is defined as the placement of a child in the care
of a person other than a parent or guardian.113 The court can place a child in the care of a non-
family member or a family member other than a parent or guardian, or in a registered cluster
foster care scheme.114 Thus, in South Africa, kinship foster care or ‘relative foster care’ may
refer to a formal care arrangement where children are cared for by relatives or kin but which
may ordered, supported and monitored by the state.115
In Ethiopia, in terms of the Alternative Childcare Guidelines on Community-Based Childcare,
Reunification and Reintegration Program, Foster Care, Adoption and Institutional Care Service
(National Guidelines), foster care refers to the placement of children who are unable to live
with their biological parents in the care of foster families.116 Foster care may be long- or short-
term.117 Although the National Guidelines do not specify whether foster parents could be
relatives of the child, they describe a foster family as
[a] family which has applied to and is selected by a foster family care organization to provide a temporary physical care and emotional support and protection for an unaccompanied child placed through a foster family care program for an unspecified time.118
110 Williamson & Greenberg (2010) 17. 111 Skelton A ‘Children’ in Currie I & De Waal J The Bill of Rights Handbook 6 ed (2013) 608. 112 South African Law Commission (Project 110) Report on the Review of the Child Care Act (2002) 215; Gallinetti J & Loffell J ‘Foster care’ in Davel CJ & Skelton A (eds) Commentary on the Children’s Act (2010) 9. 113 Children’s Act 38 of 2005, s 180(1). 114 Children’s Act, s 180(3). 115 Children’s Act, s 180(3)(b). 116 Ministry of Women Affairs Alternative Childcare Guidelines on Community-Based Childcare, Reunification and Reintegration Program, Foster Care, Adoption and Institutional Care Service (2009) (hereafter National Guidelines) 28. 117 National Guidelines, 28. 118 National Guidelines, 10.
35
A foster family care organisation is an ‘organization which is registered and licensed by the
accredited governmental body to implement foster family care placement’.119 According to the
National Guidelines, foster care may take the form of transitional homes,120 foster family
care121 and community-based foster homes.122 All three forms of foster placements are to be
arranged by a foster care organisation, one which also determines which model suits the child
the most and serves the best interests of the child.123 Thus, it can be inferred that the ‘competent
authority’ in respect of foster placements in the Ethiopian context is the foster care
organisation.
A feature of these forms of foster care share is that the care is provided within a family
environment and foster carers do not acquire parental rights in their entirety.124 If informal
kinship care is neither available nor appropriate, then foster care is widely recognised as the
next preferred form of alternative care.125 In the UN Guidelines, foster care is defined as
[s]ituations where children are placed by a competent authority for the purpose of alternative care in the domestic environment of a family other than the children’s own family that has been selected, qualified, approved and supervised for providing such care.126
The ‘competent authority’ commonly refers to the state, but it could also be an NGO, in
particular in cases where the formal child protection system is underdeveloped.127 The
definition of ‘foster care’ does not place a restriction on the number of children who can be
119 National Guidelines, 11. 120 Ethiopia’s National Guidelines describe transitional homes as places ‘where children shall be placed in a family or a centre until they get other permanent alternative placement’. National Guidelines, 33. 121 Foster family care is described as a situation ‘where children shall be placed within a volunteer family supported by the Foster Care Organizations’. National Guidelines, 33. 122 Community-based foster homes refer to places ‘where a group of children who are full orphans or whose parents/relatives are untraceable shall be placed in rented houses in the community and cared by a home mother/caretaker recruited by the organization’. 123 National Guidelines, 33. 124 Delap et al. (2011) 7. 125 Cantwell (2015) 267. 126 UN Guidelines, para 29(c)(ii). 127 Petrowski et al. (2017) 390.
36
placed in such a care setting.128 This raises the issue of whether there should be a maximum
limit on the number of children for a setting to remain in the ‘foster care’ category.129 In South
Africa, six is the maximum number of children that can be placed in the care of a single foster
parent or in a household shared by two people unless the intention is to keep siblings or blood
relatives together or it is believed to be in the best interests of the children.130 In addition to
foster care, cluster foster care has been introduced by the Children’s Act of South Africa and
enables more than six children to be cared for in such setting.131 The Children’s Act does not
limit the maximum number of children that can be placed in cluster foster care. It has been
argued, however, that with regard to the number of children that can be placed in foster care,
there is no need to set a specific limit providing that ‘the care proceedings, arrangements and
setting’ maintain the elements of a family-based setting.132
While this study focuses on formal rather than informal or spontaneous foster care, it does not
include kinship foster care (whether formal or informal); instead, the focus is on formal foster
care arrangements with non-kin.
2.5.2 ‘Other forms of family-based care’
As noted above, ‘other forms of family-based care’133 and ‘family-like’134 care placements are
among the ‘range of options’ recommended for children in need of care. However, no
indication is given in the UN Guidelines as to what these forms of care settings entail or how
to distinguish them from foster care or any other type of care.
128 UN Guidelines, para 29(c)(ii). 129 Better Care Network et al. (2013) 8. 130 Children’s Act, s 185(1)(a) and (b). 131 Children’s Act, s 185(2). 132 Better Care Network et al. (2013) 8. 133 UN Guidelines, para 29(c)(iii). 134 UN Guidelines, para 29(c)(iii).
37
Researchers have described ‘other family-based care’ as including care settings where a child
is cared for by and within an existing family which has a similar formal role as a conventional
foster carer but does not function within the foster care system.135 Thus, a feature of foster care
distinguishing it from ‘other forms of family-based care’ is the intervention of a ‘competent
authority’ ordering the placement in the context of ‘foster care’.136 This indicates that ‘other
forms of family-based care’ are informal in nature and do not involve the intervention of the
state. One example of ‘other forms of family-based care’ is where families are assigned to care
for children ‘transitioning out of residential care, or to act as “guardians” for children with
long-term alternative care needs’.137 Given the lack of state involvement, this thesis will not
deal with ‘other forms of family-based care’.
2.6 Non-family-based forms of alternative care
2.6.1 ‘Family-like care placements’
‘Family-like’ refers to care provided in small groups and organised under conditions
resembling a family but in which specific carers play a parental role albeit in a setting outside
their domestic environment.138 In other words, ‘family-like’ care does not refer to a care setting
that is structured in an existing family’s domestic setting; it refers instead to the way in which
this care is organised.139
135 Cantwell et al. (2012) 33; Better Care Network et al. (2013) 9. 136 Better Care Network et al. (2013) 7. 137 Cantwell et al. (2012) 33. 138 Better Care Network et al. (2013) 12; Cantwell et al. (2012) 33; Žegarac N The child’s right to quality Care: Review of the implementation of the United Nations Guidelines for the Alternative Care of Children in Western Balkan countries (2014) 14. 139 Cantwell et al. (2012) 33.
38
Cluster foster care was introduced by the Children’s Act, and although it is not mentioned as a
form of alternative care in the UN Guidelines, it fits the description of ‘family-like care
placements’.
2.6.2 Residential care
The UN Guidelines recommend that a wide range of alternatives be made available so that
children in need of alterative care can be offered care that meets their individual needs.140 A
residential care setting is among the options considered potentially suitable for the care of
children deprived of their ‘parental care’ provided that it conforms to certain standards.141
‘Residential care’ is defined in the Guidelines as ‘[c]are provided in any non-family-based
group setting, such as places of safety for emergency care, transit centres in emergency
situations, and all other short- and long-term residential care facilities, including group
homes’.142
Despite this definition, given that there are a wide range of non-family-based care settings
throughout the world, it would be a challenging task to neatly fit and classify them into groups
with clear delineations that hold in all circumstances.143 With regard to residential care, for
instance, some sources define this form of care as including institutions and ‘hospital units,
schools, homes, training and correction facilities, and settings where children may be admitted
that do not technically qualify’.144 The UN Guidelines also urge the relevant authorities to use
the principles of the Guidelines ‘as applicable, at boarding schools, hospitals, centres for
children with mental and physical disabilities or other special needs, camps, the workplace and
other places which may be responsible for the care of children’.145 The use of the term
140 UN Guidelines, paras 53 and 54. 141 UN Guidelines paras 21, 29(c)(iv), and 126. 142 UN Guidelines, para 29(c)(iv). 143 Better Care Network et al. (2013) 6. 144 Tolfree (1995) 11. 145 UN Guidelines, para 31.
39
‘applicable’ should not be taken as a qualification of such facilities as alternative care
settings.146 This is because some facilities may provide ‘care’ other than ‘alternative care’. A
case is point includes hospitals and schools that may provide ‘alternative care’ or ‘care’ or both.
This is an indication that children in such facilities like hospitals or schools can only be in
alternative care as far as the facilities provide ‘alternative care’, as opposed to ‘care’ per se.147
Even though the UN Guidelines consider residential care complementary to family-based care
and an option that should be made available, they set out ‘strict’ conditions to be complied
with, along with clear restrictions on the placement of children in residential care.148 Thus,
placement in residential care is justified only to the extent that it is ‘appropriate, necessary and
constructive for the individual child and … based on an assessment of what is best for the
child’.149 This implies that the unavailability of family-based alternative care options, whether
due to lack of time or resources, does not justify a child’s placement in residential care.150
The UN Guidelines, however, insist that residential care should not be used for children under
three, subject to a number of exceptions.151 Where large child-care facilities (institutions) exist,
the Guidelines demand the development of alternatives within the context of an overall de-
institutionalisation strategy to facilitate their gradual elimination.152 They further require the
establishment of care standards by which to judge the extent to which facilities are in
compliance with such standards, and by which to ensure that the quality of the care provided,
and the conditions under which care are provided, are conducive to the child’s development.153
146 UN Guidelines, para 31; Better Care Network et al. (2013) 10–11. 147 Better Care Network et al. (2013) 10–11. 148 UN Guidelines, para 21; Cantwell et al. (2012) 33. 149 UN Guidelines, para 21. 150 Cantwell et al. (2012) 38. 151 UN Guidelines, para 22. 152 UN Guidelines, para 23. 153 UN Guidelines, para 23.
40
While greater research attention has been given to the impact of placement in non-family-based
alternative care settings on children under the age of three than on older children, the emotional
and developmental risks of placement in such setting for older children have not been entirely
dismissed.154 The negative impacts caused by attachment disorder have been found to be
evident in children in middle childhood and in adolescents.155 One study states that ‘highly
specialised, therapeutic’ residential care can be beneficial to children with ‘very complex needs
or challenging behaviours’ given that it is offered in ‘small groups, living in normal houses,
integrated into the community’.156 The study highlights that in situations where
deinstitutionalisation has proved to be effective, residential placements have played a role in
providing the small share of the care provided to children with disabilities.157
2.6.3 ‘Residential care’ versus ‘institutions’
Although the negative consequences of institutional care for children and society in general are
well documented, there is no universally agreed-upon definition in the UN Guidelines or
elsewhere of what constitutes an ‘institution’, nor is there a clear, agreed-upon distinction
between such care and residential care settings.158 As can be observed from the definition of
‘residential care’ in the Guidelines, there is no size limit attached to residential care facilities,
which adds to the confusion regarding ‘institutions’ and ‘residential care’.159 A number of
sources have used the two terms interchangeably as if they were synonymous.160 Unfortunately,
154 Rosenthal E ‘A mandate to end placement of children in institutions and orphanages: The duty of Governments and donors to prevent segregation and torture’ in Protecting Children against Torture in Detention: Global Solutions for a Global Problem (2017) 316. 155 Rosenthal (2017) 316. 156 Mulheir G ‘Deinstitutionalisation – A human rights priority for children with disabilities’ (2012) 9 The Equal Rights Review 119. 157 Mulheir (2012) 119. 158 Chaitkin et al. (2017) 8; Davidson J ‘Closing the implementation gap: Moving forward with the United Nations Guidelines for the Alternative Care of Children’ (2015) 6 International Journal of Child, Youth and Family Studies 384. 159 UN Guidelines, para 29(C)(iv). 160 Williamson J & Greenberg A Families, not orphanages (2010) 12 available at http://bit.ly/2sLYv0R (accessed 22 November 2015); Browne K The Risk of harm to young children in institutional care (2009).
41
the CRC mentions ‘suitable institutions’ as the only explicit form of residential care
constituting an alternative to family-based care settings.161 Thus, the need to draw a distinction
between ‘institutions’ and ‘residential facilities’ has been recognised. It is also crucial for the
purposes of this thesis to distinguish between ‘residential care’ and ‘institutions’, to define
what is meant when using the term ‘institutions’, and to identify common elements of
institutional care.
Some sources consider ‘institutions’ as a form of residential care, which is in keeping with the
approach adopted by the UN Guidelines.162 Under the CRC, ‘institutions’ are mentioned as the
only non-family-based alternative care, whereas the term is only mentioned in the UN
Guidelines to refer to ‘large’ residential facilities.163 Accordingly, the UN Guidelines require
institutions, rather than all residential facilities, to be eliminated gradually through a ‘de-
institutionalisation strategy’.164
However, although size is generally a determining feature of institutions, it is possible for an
institutional regime to be evident in a small care setting.165 For instance, a small-group home
with less than eight children might maintain the staffing structure and regimen of a much larger
institution.166 As such, size is not the only, or determining, factor,167 although the mere mention
of ‘large’ facilities in the UN Guidelines indicates that size has relevance in determining
whether a setting falls into the category of an institution. A common understanding, although
not indisputable, in relation to size is that 10 is the maximum number of children who can be
cared for in ‘residential care’ for such setting to fall under the category of ‘family-like care’.168
161 CRC, art 20(3). Chaitkin et al. (2017) 8. 162 Tolfree (1995) 6. 163 Cantwell et al. (2012) 42. 164 UN Guidelines, para 23. 165 Better Care Network et al. (2013) 14. 166 Mulheir (2012) 119. 167 Cantwell et al. (2012) 42. 168 Better Care Network et al. (2013) 15.
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To this end, a number of sources have emphasised the need to challenge what is often called
an ‘institutional culture’.169 The latter consists in an impersonal regime that takes little account
of individuality, focuses only on the physical needs of the child, such as food and shelter, to
the exclusion of psychological and emotional needs, and tends to isolate children from the
outside world.170 Other factors may also be important in detecting an institutional culture in a
given care setting: for instance, each caregiver is responsible for a large number of children;
salaries are generally low; there is little to no training of staff who care for children; rotating
shifts are the norm; and staff lack psychological investment in the children.171 In relation to
children with disabilities, institutional culture is said to include circumstances where the
conditions set by the facility take precedence over the needs of the children in care and are
based on a medical model of care that tends to ‘reduc[e] individuals to their diagnoses’.172 One
source describes institutions from the perspective of residential facilities: they are secluded
from the ‘mainstream community’, offering little prospect of integration in regular day-to-day
life and experiences; accommodate large groups of unrelated children who are made to live
together; separate children from their parents, extended family, friends and community for
prolonged periods of time; and are structured in an impersonal and rigid routine that is
incapable of responding to the individual needs of the children.173
However, another study insists that, to distinguish institutions from other types of care settings,
the focus should be on whether carers in ‘institutions’ work predetermined hours/shifts and
170 Cantwell et al. (2012) 34; UNICEF & Inter-American Commission on Human Right & Organization of American States The Right of Boys and Girls to a Family: Alternative Care. Ending Institutionalization in the Americas (2013) 137; Csáky C Why Care Matters: The importance of adequate care for children and society (2014) 6. 171 Dozier M, Zeanah CH, Wallin AR, et al. ‘Institutional care for young children: Review of literature and policy implications (2012) 6(1) Social Issues and Policy Review 3. 172 European Commission Report by the Ad Hoc Expert Group on the Transition from Institutional to Community- based Care (2009) 119. 173 Mulheir (2012) 119.
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whether they act as surrogate parents, rather than on the caregiver-to-child ratio.174 The reason
for this is that the ratio of children to carers in a family-type home, or family-based care, such
as foster care, may also be low.175 In respect of ‘geographical location’, which some sources
have used to distinguish institutional care, it has been argued that this is not always applicable,
as there are facilities which are located centrally and are accessible but have a fundamentally
‘isolationist regime’.176
From the above discussion, it is clear that there is no definition of ‘institutions’ that is ‘fool
proof’, given the ‘heterogeneous and hybrid alternative care environment’.177 Since an
institutional culture can be present in smaller care settings, this broader understanding of
institutional cultures should be the determining factor to establish whether a particular facility
falls into the category of ‘institution’.178 However, for the purpose of this thesis, an ‘institution’
refers to ‘residential care settings where children are looked after in any public or private
facility, staffed by salaried carers or volunteers working predetermined hours/shifts, and based
on collective living arrangements, with a large capacity’.179
2.7 The principles of necessity and suitability
The decision-making process for alternative care under the UN Guidelines is founded on two
fundamental principles: ‘necessity’ and ‘suitability’. Put in simple terms, these principles
require that no child should be placed in alternative care if it is not genuinely warranted and
where an appropriate solution would have been the provision of support to the family.
However, when separation becomes necessary, the choices made regarding the care provided
174 Better Care Network et al. (2013) 15. 175 Better Care Network et al. (2013) 15. 176 Better Care Network et al. (2013) 15. 177 Better Care Network et al. (2013) 11. 178 Davidson (2015) 384. 179 This definition was proposed by the NGO Working Group on Children without Parental Care to differentiate institutional care from other forms of residential care. Better Care Network et al. (2013) 15.
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for children should be appropriate and determined on a case-by-case basis. For the purpose of
this thesis, the suitability principle is the more relevant, as the necessity principle is concerned
with the prevention aspect of alternative care. Therefore, the following discussion gives greater
emphasis to the suitability principle and explores its implications for the alternative care of
children with disabilities.
2.7.1 Suitability principle: Determination of the most appropriate care placement
The suitability principle requires making sure that, in cases where alternative care is necessary,
such care is provided in a manner that is appropriate.180 The suitability principle necessitates
that all aspects of a certain alternative care setting comply with the overall requirements of the
rights of children.181 The principle also entails a setting wherein the child is cared for in such a
way as to meet his or her specific needs.182 In relation to the latter requirement, that is ensuring
‘case-by-case’ suitability, a precondition is that there should be a variety of options available
so that the setting that is chosen is likely to respond to a specific child’s individual needs and
circumstances.183 In addition to family-based alternative care, residential care facilities are one
of the alternative care options considered suitable for children deprived of parental care.184
These two types of care arrangements are regarded as complementary in meeting the needs of
the child185 and should be used when they offer the ‘most suitable solution’ for the individual
needs of the child.186 However, clear priority is given to family-based forms of alternative
care.187
180 Cantwell et al. (2012) 22. 181 Cantwell (2015) 261. 182 Cantwell N The Best Interests of the Child in Intercountry Adoption (2014) 34; Cantwell et al. (2012) 22–3 and 66–74. 183 Cantwell et al. (2012) 22. 184 UN Guidelines, para 23. 185 UN Guidelines, para 23. 186 UN Guidelines, para 21. 187 UN Guidelines, para 53.
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Thus, in respect of the suitability of residential care settings, even though the UN Guidelines
consider this form of care as potentially suitable, they have to comply with certain standards
and be used only when deemed appropriate and necessary for the child in question.188
Nonetheless, the term ‘institutions’, as discussed earlier, is not synonymous with ‘residential
care’: the former are equated with ‘large care residential facilities’ in the UN Guidelines and
are subject to ‘progressive elimination’.189 Therefore, the suitability principle is reinforced by
the shift towards deinstitutionalising the alternative care system and fostering family-based or
family-type settings.190
For countries with limited resources such as Ethiopia and South Africa, it may be argued that
endorsing deinstitutionalisation and family-based alternative care options for children with
disabilities is idealistic and unfeasible. However, studies have shown that family-based
alternative care options, such as foster care, are much more cost-effective than institutional
care.191 This is also true in the context of caring for children with disabilities.192 Although the
initial cost of deinstitutionalisation and transforming the alternative care system are high, the
long-term gains of deinstitutionalisation and investing in family-based alternative care options
are higher, not just in terms of its cost-effectiveness, but also the positive outcomes for children
and society at large, such as lower dependency and greater social inclusion.193
In the light of the above, it is unfortunate that the CRC considers ‘suitable institutions’ to be
available for children deprived of their family environment.194 The prescription in the CRC of
‘suitable institutions’ as one of the potential forms of alternative care to be considered for
188 UN Guidelines, para 21; Cantwell et al. (2012) 22 and 71. 189 UN Guidelines, para 23. 190 Cantwell (2015) 261. 191 Cantwell et al. (2012) 91; Engle et al. (2011) 213; Eurochild De-institutionalisation and Quality Alternative Care for Children in Europe: Lesson Learned and the Way Forward (2012) 5. 192 Engle et al. (2011) 213. 193 Eurochild (2012) 5. 194 Cantwell (2014) 34.
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children deprived of their family environment is a manifestation of the influence of the Soviet
Union and allied states that were among the active drafters of the CRC in the 1980s.195 Hence,
the terminology of the CRC in this regard is explicable, given that placement of children in
institutional care was a component of the ‘ideology governing child protection systems’ during
the 1980s.196 However, more than two decades since the CRC came into force and at a time
when the negative effects of institutions are widely acknowledged by the international
community, it is fitting to question the ‘suitability’ of institutions for the care of any child
deprived of his or her family environment.197
In relation to the suitability of alternative care options, the CRPD takes a strong stand by only
mentioning community and family-based alternative care to be provided when children with
disabilities are found to be in need of alternative care.198 Thus, in respect of the CRPD, there
is no room to question whether institutions are a ‘suitable’ form of alternative care, as the focus
is clearly on providing children with disabilities with alternative care within the extended
family, or, when that proves impossible, within the community in a family setting.199
Ensuring that alternative care is suitable also requires giving due regard to the child’s right to
periodic review of his or her placement.200 This step is crucial in evaluating whether or not the
child’s placement in alternative care remains necessary and the alternative care setting
continues to meet his or her individual needs.201 Alternative care is regarded as primarily a
short-term measure, and thus its quality depends largely on the extent to which the child’s safe
195 Cantwell (2014) 34; OHCHR Regional Office for Europe ‘The rights of vulnerable children under the age of three: Ending their placement in institutional care’ (2012)10 available at http://bit.ly/39H7zEH (accessed 15 May 2016). 196 OHCHR Regional Office for Europe (2012) 10. 197 OHCHR Regional Office for Europe (2012) 10–11. 198 CRPD, art 23(5). 199 CRPD, art 23(5). 200 Cantwell et al. (2012) 22. 201 Cantwell (2014) 34; Cantwell (2015) 261.
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and effective departure from it can be facilitated as quickly as possible.202 At the same time,
the UN Guidelines require that formal alternative care ensure ‘permanency’ wherever
possible.203 Ensuring permanency helps to enable the child’s stable connection with a family
or caregiver and to avoid frequent ‘transition and changing care arrangements’ which can be
detrimental to his or her development. For the small percentage of children for whom
reunification with their family is not feasible, foster care and adoption are deemed to be means
of attaining the goals of stability stipulated by the Guidelines.204
2.7.2 The necessity principle: Preventing the need for alternative care
The UN Guidelines provide different sets of measures from the global to the individual that,
through family strengthening and support, are aimed at discouraging recourse to alternative
care options, such as institutions for the care of children with disabilities.205 In this manner, the
Guidelines acknowledge the linkage between economic and social policy and the alternative
care system.206 Therefore, apart from ensuring ‘quality’ and ‘suitable’ alternative care, the need
to prevent the factors driving family breakdown is emphasised in the Guidelines.207 Adherence
to this principle necessitates the availability and development of a wide range of effective
preventive services, such as family strengthening and support, day-care, and ‘respite care’ to
provide caregivers and families of children with disabilities with temporary relief from their
responsibilities.208 The necessity principle further implies supporting and strengthening
appropriate domestic solutions for the care of children deprived of their family environment.209
202 Cantwell (2015) 261. 203 UN Guidelines, paras 2(a) and 60–3. 204 Delap et al. (2011) 22. 205 See UN Guidelines, paras 32–52. Cantwell (2015) 260. 206 Cantwell (2015) 260. 207 See UN Guidelines, paras 39–48. Cantwell (2015) 260. 208 Chaitkin et al. (2017) 8. 209 Chaitkin et al. (2017) 8.
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The UN Guidelines provide for three levels of prevention to alternative care as primary,
secondary and tertiary levels of prevention.210 The primary level of prevention involves wide-
ranging measures that address the ‘root causes’ and societal factors that lead a parent to
abandon or relinquish a child.211 As a consequence, this level of prevention ensures that all
children including children with disabilities, have access to basic services, social justice and
are afforded rights without discrimination.212 The significance of this level of prevention lies
in its role in addressing inappropriate, inadequate or poor quality service provision for children
with disabilities. This level of prevention reiterates the role that caregivers play in the choices
they make about children’s care and well-being.213
The secondary level prevention offers relief to individuals who have not been successful with
primary prevention.214 It requires the provision of financial assistance and services to children
with disabilities and their caregivers in an integrated and ‘non-intrusive’ manner.215 According
to the UN Guidelines, poverty is not regarded as an adequate justification for the removal of a
child from family care, rather it should trigger the extension of support for the family.216 It is
noteworthy that the CPRD asserts that the disability of either a parent or a child is not a
sufficient reason for removing the child from his or her family.217
The tertiary level of prevention is used when the primary and secondary levels of prevention
have failed and the placement of the child in alternative care cannot be avoided.218 This level
210 European Network of National Observatories on Childhood Alternative forms of care for children without adequate family support: Sharing good practices and positive experiences (2012) 12; Cantwell et al. (2012). 211 Chiwaula et al. (2014) 41; Cantwell et al. (2012) 50. 212 Chiwaula et al. (2014) 41; Cantwell et al. (2012) 50. 213 Better Care Network & EveryChild ‘Enabling Reform: Why supporting children with disabilities must be at the heart of successful child care reform’ (2012) 30. 214 Chiwaula et al. (2014) 41. 215 UN Guidelines, para 34(b) and 35; Cantwell et al. (2012) 54. 216 UN Guidelines, para 15. 217 CRPD, art 23(4). 218 Chiwaula et al. (2014) 41.
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of prevention entails that the child is ultimately reintegrated with his or her family whenever
appropriate and possible.219
2.8 Conclusion
This chapter has discussed the three models of disability and unpacked how the term
‘disability’ is conceptualised within the ambit of those models. Following the discussion on the
models of disability, the chapter has highlighted how they inform the provision of alternative
care to children with disabilities. The chapter established that the terms ‘disability’, ‘persons
with disabilities’ and ‘children with disabilities’ are not defined in the applicable standards.
For the purpose of this thesis, the chapter adopted the CRPD’s description of the term ‘persons
with disabilities’ as stated in article 1 of the Convention.
Moreover, this chapter has provided a conceptual framework for the right to alternative care of
children with disabilities by using the UN Guidelines and the CRPD as the basis thereof. It was
observed that there is a difference between the international standards and the UN Guidelines
in terms of when alternative care should be provided. According to the UN Guidelines, loss of
parental care entitles a child to be provided with alternative care, whereas in the CRC and
ACRWC deprivation of ‘family environment’ is what triggers the right. Similarly, in the CRC,
ACRWC and CRPD, a child with a disability who can no longer be cared for by the ‘immediate
family’ should be provided with alternative care.
This chapter also discussed what the term ‘family environment’ means and what implications
are for the provision of alternative care. In addition, it looked at the definitions of the various
forms of formal alternative care provided by the UN Guidelines. Furthermore, a distinction
was made between ‘residential care’ and ‘institutions’. Various sources describe the basic
219 European Network of National Observatories on Childhood (2012) 13.
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characteristics of ‘institutions’ in contradistinction to those of ‘residential care’. However, it
has been emphasised that some level of rationality is required in establishing whether a
particular facility should be considered as an ‘institution’.
It has been noted that the principles of necessity and suitability entail that children are not
placed in alternative care in cases where it is not absolutely necessary and where an appropriate
solution would have been the provision of support within the family. However, when separation
becomes necessary, the choices made regarding the care provided for children need to be
appropriate and determined on a case-by-case basis. It has been highlighted that the suitability
principle is reinforced by the shift towards deinstitutionalising the alternative care system and
the preference for family-based or family-type settings.
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Chapter 3: The International and Regional Legal Framework for
the Right to Alternative Care of Children with Disabilities
3.1 Introduction
The previous chapter examined the conceptual framework for the alternative care of children
with disabilities. The present chapter considers, first, what the right to alternative care for
children with disabilities entails and what State Parties’ obligations are in terms of international
and regional standards, and, secondly, what minimum standards are set out in the instruments
governing the right to alternative care. The aim of this chapter is thus to establish the legal basis
of the right to alternative care for children with disabilities, so that this can be used in
subsequent chapters to assess the extent to which Ethiopia and South Africa are complying
with their obligations under international child-rights law.
However, this chapter does not provide a review of an exhaustive list of instruments, but
concentrates on instruments that focus either on children’s rights or disability rights, that is,
CRC, ACRWC and CRPD. Thus, the chapter examines the normative aspect of the right to
alternative care of children with disabilities by critically analysing provisions in the three
instruments read together with the general comments and concluding observations of the
respective committees. The chapter also relies on the legislative histories and reporting
guidelines of the relevant standards. In addition to these instruments, there are also non-
binding declarations and guidelines that deal with the right to alternative care of children in
general, and children with disabilities in particular. These instruments form part of the
discussion in this chapter. The chapter commences by presenting a brief background to the
right to alternative care of children in international law as it stood before the adoption of the
CRC.
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Given that the applicable standards differ in the obligations they impose on states and that both
Ethiopia and South Africa are bound by all three standards, the discussion identifies provisions
that provide a higher level of protection to children with disabilities deprived of their family
environment in the context of alternative care. This is done on the basis of article 30 of the
Vienna Convention on the Law of Treaties which provides that, as regards parties to one treaty
who become parties to a second, the general trend is that the second governs any point where
it is incompatible with the first.1 So, in cases where the provisions of CRC and ACRWC, on
one hand, conflict with the provisions of the CRPD, on the other, the latter should prevail.
Along the same lines, all three instruments, that is, the CRC, ACRWC and CRPD, explicitly
recognise that the standards incorporated in them are the minimum standards that are to be
adhered to by State Parties. These instruments contain provisions which declare that nothing
in the respective standards ‘shall affect any provisions more conducive to the realisation to the
right of the child and which may be contained in the law of a State Party’ or any other
international convention or agreement in force in that state.2
3.2 Children’s right to alternative care before the CRC
The 1924 Declaration of the Rights of the Child (the Geneva Declaration) is the first appeal to
states to respond to the situation of parentless and destitute children.3 This is reflected in the
Declaration’s second principle, which provides that ‘the orphan and the waif must be sheltered
and succored’.4 Despite what the name implied, that is, the Declaration of the Rights of the
1 Borgen C ‘Resolving treaty conflicts’ (2005) 37 George Washington International Law Review 577; art 30(2) of the VCLT states that ‘[w]hen a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’. 2 See art 4(4) of the CRPD, art 41 of the CRC and art 1(2) of the ACRWC. 3 The Geneva Declaration of the Rights of the Child (1924) (hereafter Geneva Declaration) was a brief document consisting of five stipulations that summarised the general needs of children. 4 See the Geneva Declaration, Principle 2.
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Child, it did not impose any legal obligation on states or bestow rights on children.5 Rather, its
aim was to provide charitable support and welfare to children who were destitute and without
parental care.6 Hence, the now well-established obligation to provide special protection and
assistance to children deprived of their parental care was initiated by the second principle of
the Geneva Declaration.7
Subsequently, building upon the principles in the Geneva Declaration, the 1959 UN
Declaration of the Rights of the Child asserted the importance of ‘love and understanding’ for
the ‘full and harmonious development’ of a child, and stipulated that a child should grow up in
the care of parents wherever possible.8 It underlined the responsibility of public authorities and
society in general to provide care to children deprived of their family or ‘those without adequate
means of support’.9 In comparison with the Geneva Declaration, the 1959 Declaration
broadened the scope of circumstances under which a child might need alternative care by using
the phrase ‘without a family’, which is much wider than the term ‘orphan’ used in the Geneva
Declaration.10 The use of the word ‘duty’ instead of ‘moral obligation’ also suggests that a
higher degree of responsibility is expected of states.11 Although the Declaration put greater
emphasis on children’s rights and corresponding state duties than its predecessor, it did not
establish any legal rights.12 The significance of 1959 Declaration is undeniable, however, in
that it paved the way for the subsequent development of children’s rights.13
5 Kaime T The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective (2009) 12; Van Bueren G The International Law on the Rights of the Child (1995) 7. 6 Cantwell N ‘The human rights of children in the context of formal alternative care’ in Vandenhole W, Desmet E, Reynaert D, et al. (eds) Routledge International Handbook of Children’s Rights Studies (2015) 258. 7 See art 20(1) of the CRC and art 25(1) of the ACRWC. 8 See the Declaration of the Rights of the Child (1959) (hereafter the 1959 Declaration), Principle 6. 9 See the 1959 Declaration, Principle 6. 10 Cantwell (2015) 258–59. 11 Cantwell (2015) 259. 12 Kaime (2009) 12–4. 13 Kaime (2009) 13–4.
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Perhaps the most significant declaration in respect of the development of the right to alternative
care is the Declaration on Social and Legal Principles Relating to the Protection and Welfare
of Children with Special Reference to Foster Placement and Adoption Nationally and
Internationally (the 1986 Declaration).14 It established for the first time how alternative care
should be sought and provided.15 The Declaration shows a clear preference for family-based
alternative care by stating that care should be provided ‘by relatives of the child’s parents, by
another substitute – foster or adoptive – family or, if necessary, by an appropriate institution
…’16 The qualifying term ‘if necessary’ is reproduced in article 20 of the CRC, which echoes
the hierarchy between family-based alternative care options and institutions.17 It has been
argued that the insertion of the restrictive phrase, ‘if necessary’, implies a recognition in the
1980s of concerns about over-reliance on institutions as a means to care for children.18 Thus,
it can be seen that the consideration of institutional care as a last resort and the preference given
to family-based care has its origin in the 1986 Declaration.
The 1986 Declaration is simply a declaration of intent with no binding character; however, it
is significant in the advancement of children’s rights in general and the right to alternative care
in particular. Moreover, although there is no clear evidence in the Travaux Préparatoires that
there was a direct influence, it is safe to assume that the basic principles and articulations of
the 1986 Declaration were incorporated in the CRC.19
14 The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986) (hereafter the 1986 Declaration) was adopted by the UN General Assembly as a response to concerns expressed by member states about the growing number of children without family care. The 1986 Declaration, Preamble. 15 Cantwell (2015) 259. 16 See art 4 of the 1986 Declaration. Cantwell (2015) 259. 17 Cantwell N & Holzscheiter A ‘A commentary on the United Nations Convention on the Rights of the Child article 20: Children deprived of their family environment’ in Alen, A et al (eds) A Commentary on the United Nations Convention on the Rights of the Child (2008) 16–7. 18 Cantwell & Holzscheiter (2008) 16. 19 Cantwell & Holzscheiter (2008) 16.
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3.3 International and regional legal frameworks and guidelines
3.3.1 Convention on the Rights of the Child
Adopted in 1989, the CRC was the first binding global instrument with a focus on the rights of
children;20 since then, it has been ratified by all states, except the United States.21 The CRC
represents a shift from earlier thinking which viewed children as groups of society
predominantly needing protection and welfare to their recognition as active holders of rights.22
At the same time, the CRC affords children additional levels of protection by acknowledging
their vulnerability as a result of their youth.23 From a reading of its Preamble and substantive
articles, it can be observed that the CRC has borrowed from the principles of preceding
declarations, as evidenced by the references made to the 1924 Geneva Declaration, and the
1959 Declaration, among others.24 It can be concluded that the final content of the CRC is a
collection of all international human rights for children.25
3.3.2 The African Charter on the Rights and Welfare of the Child
The African Charter on the Rights and Welfare of the Child (ACRWC) was adopted in July
1990 and entered into force on 29 November 1999.26 It is the second binding instrument at the
20 Despite initial hopes of speedy completion, the drafting took 10 years. The Working Group met once each year for one week, just prior to the annual session of the Commission on Human Rights. Originally, there was so little interest in the Convention that few governments or NGOs attended the drafting sessions. However, in 1983, drafting of the Convention began to develop momentum, and by 1985 the number of participating delegations and NGOs had more than doubled. Cohen CP & Naimark H ‘United Nations Convention on the Rights of the Child: Individual rights concepts and their significance for social scientist’ (1991) 46(1) American Psychologist 61; Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999) 1; Mezmur BD ‘The United Nations Convention on the Rights of the Child’ in Boezaart T (ed) Child Law in South Africa 2 ed (2017) 403–4. 21Mezmur (2017) 403–4. 22 Cohen & Naimark (1991) 60; Lansdown G Using the human rights framework to promote the rights of children with disabilities: Working paper: An analysis of the synergies between CRC, CPRD and CEDAW (2012) 6. 23 Lansdown (2012) 6. 24 Assim U Understanding Kinship Care of Children in Africa: A Family Environment or an Alternative Care Option? (2013) 83. 25 Assim (2013) 83. 26 Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990).
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global level and the first at the regional level to comprehensively provide for the rights of
children.27 Its adoption was driven by the objective of ensuring that the CRC was given specific
application in the continent28 and take into account the social, cultural, and economic realities
of children in the African context.29 Despite differences in the background against which they
are formulated, it must be noted that the two treaties are complementary30 and that most of the
ACRWC’s provisions are in fact more or less the same as the CRC’s.31 Some scholars suggest
that the ACRWC’s provisions offer a higher level of protection to the rights of children than
the CRC’s.32
It is important to highlight that the rights of children with disabilities in Africa is further
enhanced by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Persons with Disabilities in Africa (African Disability Rights Protocol), which was adopted
in 2018.33 It contains a provision that is solely dedicated to the rights of children with
disabilities.34 The Protocol will only come into force after it has been ratified by 15 countries.35
27 Chirwa DM ‘The merits and demerits of the African Charter on the Rights and Welfare of the Child’ (2002) 10 The International Journal of Children’s Rights 157. 28 Lloyd A ‘Evolution of the African Charter on the Rights and Welfare of the Child and the African Committee of Experts: Raising the gauntlet’ (2002) 10 The International Journal of Rights 179–80; Mezmur BD ‘The African Children’s Charter versus the UN Convention on the Rights of the Child: A zero-sum game?’ (2008) 23 South African Public Law Journal 6; Viljoen F ‘Supra-national human rights instrument for the protection of children in Africa: The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child’ (1998) 31 Comparative and International Law Journal of Southern Africa 205. 29 See the ACRWC, Preamble; Lloyd (2002)180. 30 Olowu D ‘Protecting children’s rights in Africa: A critique of the African Charter on the Rights and Welfare of the Child’ (2002) 10 The International Journal of Children’s Rights 128. 31 Lloyd A ‘Regional Developments on the Rights and Welfare of Children in Africa: A general report on the African Charter on the Rights and Welfare of the Child and the African Committee of Experts’ (unpublished article, University of the West of England, 2003). 32 Lloyd (2003) 1. 33 African Union (AU) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (2018) (hereafter African Disability Rights Protocol). 34 Article 28 of the African Disability Rights Protocol. Although most of the provisions of the Protocol dealing with children with disabilities are similar to those in the CRPD, the African Disability Rights Protocol affords additional protections to children with disabilities, including the requirement that the best interests of children with disabilities be the primary consideration in all matters affecting them. It further requires that children with disabilities be provided with assistance that is not only age- and disability-appropriate, but also ‘gender-appropriate’, to facilitate their right to participate in matters affecting them. 35 African Disability Rights Protocol, art 38(1).
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So far, it has been signed by eight countries, but has not yet been ratified by any of the 54
countries.36
It is, however, regrettable that the African Disability Rights Protocol does not address the
alternative care of children with disabilities who are deprived of their family environment. For
this reason, and as the Protocol has not yet been ratified by either Ethiopian or South Africa, it
will not be discussed further in this chapter.
3.3.3 Convention on the Rights of Persons with Disabilities
The CRPD was adopted on 13 December 2006 and entered into force on 3 May 2008.37 It is
the first legally binding international instrument to deal with the rights of persons with
disabilities, the first international human rights treaty of the 21st century, and the fastest
negotiated human rights treaty.38 The CRPD was not intended to create new rights but to
‘clarify, consolidate and strengthen’ rights which already exist in human rights standards39 and
reintroduce them in a manner ‘tailored … in response to specific needs and circumstances of
people with disabilities’.40 The CRPD shifts from the medical model of disability, which views
persons with disabilities as sick and in need of a cure, by adopting a human rights-based
approach which considers them as rights-holders and acknowledges environmental barriers as
causes of disability.41 It further endorses the social model of disability that recognises disability
36 As of June 17, 2020, the African Disability Rights Protocol has been signed by only eight African countries but it has not yet been ratified by any of the countries. African Union, List of Countries Which has Signed, Ratified or Acceded to the Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa. Available at https://bit.ly/3bbWxZg (accessed 31August 2020) 37 United Nations, Office of the High Commissioner for Human Rights (OHCHR) Professional Training Series No 19: The Convention on the Rights of Persons with Disabilities, Training Guide (2014). 38 The Convention was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006. Waterstone M ‘Foreword: The significance of the United Nations Convention on the Rights of Persons with Disabilities’ (2010) 33 Loyola of Los Angeles International and Comparative Law Review 2. 39 OHCHR Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors (2010) 24; Sabatello M ‘Children with disabilities: A critical appraisal’ (2013) 21 International Journal of Human Rights 473. 40 Akiyama A ‘Convergence between the International Convention on the Rights of Persons with Disabilities and the Biwako Millennium Framework for Action’ (2007) 18 Asia Pacific Disability Rehabilitation Journal 22. 41 Kanter AS ‘The promise and challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 291.
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as the result of ‘the interaction between persons with impairments and attitudinal and
environmental barriers’.42 Hence, it provides an unmatched level of protection for
persons/children with disabilities, with rights that speak to their specific needs and
circumstances.43
3.3.4 The UN Guidelines for the Alternative Care of Children The first appeal to develop a guideline on the alternative care of children was made by UNICEF
in 2004.44 The need to develop such a guideline was also raised by the CRC Committee, which
in 2005 dedicated its Day of General Discussion to Children without Parental Care.45 One of
the outcomes of the discussion was a recommendation for the international community to
develop guidelines to ameliorate the situation of children deprived of their family
environment.46
Although the basic state obligations in respect of the right to alternative care of children
deprived of their family environment are set out in the CRC, detailed guidance on how to meet
these obligations is lacking in the Convention. To this end, the UN Guidelines were adopted
with the aim to fill in the missing pieces and assist State Parties in the implementation of the
CRC as well as other pertinent international instruments dealing with the protection and welfare
of children deprived of parental care and at risk of losing it.47 Subsequently, the UN Guidelines
were adopted by the UN General Assembly in November 2009.48
42 See CRPD Preamble, para (e); OHCHR (2010) 13; Akiyama A ‘Convergence between the International Convention on the Rights of Persons with Disabilities and the Biwako Millennium Framework for Action’ (2007) 18 Asia Pacific Disability Rehabilitation Journal 22. 43 With some exceptions, the rights of children with disabilities were not explicitly provided for in earlier main human rights instruments. Byrne B ‘Minding the gap? Children with disabilities and the United Nations Convention on the Rights of Persons with Disabilities’ in Freeman M (ed) Law and Childhood Studies: Current Legal Issues Volume 14 (2012) 422. 44 Cantwell N, Davidson J, Elsley S, et al. Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children (2012) 19. 45 Cantwell et al. (2012) 20. 46 Cantwell et al. (2012) 20. 47 Cantwell et al. (2012) 20. 48 For a history of the development of the UN Guidelines, see Cantwell et al. (2012) 19–20.
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Despite their lack of legal binding force, the UN Guidelines are believed to have ‘a strong
moral impact, as they are mostly based on or derived from legally binding standards’.49 The
fact that the Guidelines were adopted by the UN General Assembly by a unanimous vote
enables them to serve as a strong tool to inform the approach to the alternative care of
children.50 Moreover, the UN Guidelines have gained prominence in part because of their
‘systematic use’ as a point of reference by the CRC Committee in its concluding observations
to determine State Parties’ compliance with the provisions of the Convention relating to the
alternative care of children.51 It is for these reasons that this chapter relies on the UN Guidelines
to explore the content of the right to alternative care, notwithstanding the Guidelines’ non-
binding nature.
3.4 General state obligations under the pertinent standards
The CRC, ACRWC and CRPD contain provisions dedicated to specifying the overall
implementation obligations of states that have ratified the respective treaties and to setting out
broad strategies for the latter’s implementation.52 The measures states are expected to
undertake include legislative, administrative, and other measures.53 The term ‘appropriate’
allows states to adopt measures according to their domestic laws, provided that such measures
49 Phillips C Child-Headed Households: A Feasible Way Forward, or an Infringement of Children’s Right to Alternative Care? (2011) 21. 50 Cantwell et al. (2012) 20–21; Davidson J ‘Closing the implementation gap: Moving forward with the United Nations Guidelines for the Alternative Care of Children’ (2015) 6 International Journal of Child, Youth and Family Studies 382. 51 Cantwell et al. (2012) 21; Davidson (2015) 382; Chaitkin S, Cantwell N, Gale C, et al Towards the right care for children: Orientations for reforming alternative care systems Africa, Asia, Latin America (2017) 8. For instance, in 2016 the CRC Committee made reference to the UN Guidelines in response to 20 out of 27 State Parties’ reports. Sandberg K ‘Alternative Care and Children’s Rights’ in Kilkelly U & Liefaard T (eds) International Human Rights of Children (2019) 190. 52 See art 4 of the CRC, art 1 of the ACRWC and art 4 of the CRPD. 53 While the CRC and art 4 of the CRPD require states to take appropriate legislative, administrative and other measures, the ACRWC requires states to adopt legislative and other measures ‘in accordance with their Constitutional processes’ to implement the provisions of the Charter. See art 4 of the CRC, art 1 of the ACRWC and art 4(1)(a) of the CRPD.
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meet the requirements of article 4.54 Other measures may include financial, judicial and
educational ones.55
Similarly, the CRPD requires states to take legislative, administrative and other measures to
‘ensure and promote the full realisation of all human rights and fundamental freedoms for all
persons with disabilities without discrimination of any kind on the basis of disability’.56
Article 20 of the CRC has been regarded as innovative in that what the right provides and
protects does not fit neatly into the category of either of civil or political rights or social,
economic and cultural rights.57 In respect of the nature of states’ obligations under the treaties,
the CRC and the CRPD make the implementation of economic, social and cultural rights
subject to progressive realisation to the maximum extent of states’ available resources.58
However, this does not include obligations that, under international law, must be implemented
immediately, such as the obligation not to discriminate.59
This indicates that the relevant provision governing the alternative care of children with
disabilities is subject to progressive realisation. One point of distinction is that article 1 of the
ACRWC neither makes the implementation of economic, social and cultural right subject to
available resources nor includes the element of progressive realisation.60 The African
54 Rishmawi M ‘A commentary on the United Nations Convention on the Rights of the Child: Article 4: The nature of states parties’ obligations’ in Alen, A et al (eds) A commentary on the United Nations Convention on the Rights of the Child (2006), para 10. 55 Fina VD ‘Article 4 [General obligations] in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 143. 56 CRPD, art 4(1)(a). 57 Zilliox ‘Where is the village going? Maintaining and including cultural strengths to protect children orphaned in Kenya’ (2006) 44 Family Court Review 377. 58 CRC, art 4 and CRPD, art 4(2). 59 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The nature of States parties’ obligations (article 2, para 1) (1990), para 1; CRPD, arts 4(2); OHCHR (2010) 29; Mezmur BD ‘The United Nations Convention on the Rights of the Child’ in Boezaart T (ed) Child Law in South Africa 2 ed (2017) 407. 60 The ACERWC makes it clear that it was intentional not to constrain the implementation of economic, social and cultural rights by the principle of the progressive realisation or lack of reference to the degree of realisation within the ‘maximum extent of available resources’. African Committee of Experts on the Rights and Welfare of the Child (ACERWC) General Comment No. 5 ‘State Party Obligations under the African Charter on the Rights
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Committee of Experts on the Rights and Welfare of the Child (ACERWC) underscores the
point that there is no hierarchy of rights in the Charter in that all rights are equally important
and must be implemented immediately.61 It emphasises that states are not allowed to use lack
of resources as a justification for not implementing socio-economic rights.62 In this respect, it
can be argued that the position of the ACERWC places a stronger responsibility on States
Parties to make adequate budgetary resources available for the implementation of the rights of
children with disabilities in the context of alternative care than the CRC and the CRPD.
Furthermore, the nature of the State Parties’ obligations under the relevant provisions indicates
that while the primary responsibility to implement the treaties lies with the state, the full
implementation of the rights in the applicable standards necessitates shared responsibility that
extends to international cooperation.63 Thus, as part of the obligation to progressively realise
economic, social and cultural rights, the state bears the responsibility to establish that the
necessary measures have been taken to implement the rights under the Convention ‘to the
maximum extent of their available resources’ and that, where necessary, international
cooperation has been sought.64
3.5 General principles of most of the international standards
While the CRC does not refer to the general principles itself, the CRC Committee has
highlighted four of them. The principles were drawn from the following CRC provisions:
article 2 (non-discrimination); article 3 (the best interests of the child); article 6 (the right to
life, survival and development); and article 12 (the right of the child to express his or her views
and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection’ (2018) (hereafter ACERWC, GC. 5 (2018) sec iii 5–7. See Rishmawi (2006), para 28. 61 ACERWC, GC No. 5 (2018) 7. 62 ACERWC, GC No. 5 (2018) 7. 63 CRC, art 4; Mezmur (2017) 407. See art 4(2) of the CRPD. 64 CRC, art 4; Rishmawi (2006) para 92.
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and to be heard, sometimes also referred to as the right to participation).65 These general
principles were first instituted by the CRC Committee in the guidelines for initial reports and
are arguably relevant to the interpretation and implementation of all the rights in the CRC.66 It
has been argued that the four general principles (also known as the ‘four cardinal principles’)
portray the essence of the CRC and assert its object and purpose.67 On this basis, some refer to
the four principles as the ‘soul’ of the Convention.68
The CRC Committee, in addition to making various references to the four general principles in
previous general comments, has issued separate general comments on two of the principles so
far: the principle of the best interests of the child and of respect for the views of the child.69
The general comments have shed some light on the role of the two principles and the ‘general
principles’ as a whole.70 Jurisprudence on the CRC underscores that the general principles
65 It is noteworthy, however, that despite the mention of arts 2, 3, 6 and 12 as whole, it is only their first paragraphs that are considered a ‘general principle’ and not the provisions as whole. This has resulted in the rest of the sub-articles, in particular art 3(2) and art 3(3), being overlooked in the reporting guidelines. Hanson K & Lundy L ‘Does exactly what it says on the tin?: A critical analysis and alternative conceptualisation of the so-called ‘general principles’ of the Convention on the Rights of the Child’ (2017) 25 International Journal of Children’s Rights 292. 66 Hanson & Lundy (2017) 290 and 301. 67 Rios-Kohn R ‘The Convention on the Rights of the Child: progress and challenges’ (1998) 5 Georgetown Journal on Fighting Poverty 143. 68 Rios-Kohn (1998) 143. The concept of ‘general principles’ and their intended role has been contested. The history of the preparation of the guidelines for reporting by the CRC Committee suggests that the term ‘general principles’ was more a measure of structure than of content. The term ‘principles’ was seen as confusing as it gives the impression that the provisions are guiding and not binding, although all four are dealing with rights. In particular, the inclusion of art 6 on the right to life, survival and development as one of the general principles has been disputed on the ground that although ‘fundamentally important’, the provision is not ‘cross-cutting’ in nature as it is not always pertinent to the implementation of all other articles in the Convention. Questions were raised about the meaning of these principles and why other provisions, for example art 4 (specifying State Parties’ general obligations) and art 5 (on evolving capacities), did not qualify for the status of general principles as they would better qualify as ‘cross-cutting’, given that they are formulated in direct relation to to other rights in the CRC. See Abramson B A Commentary on the United Nations Convention on the Rights of the Child: Article 2: The Right of Non-Discrimination (2008) 64–7; Hanson & Lundy (2017) 301. 69 CRC Committee General Comment No. 14, ‘The right of the child to have his or her best interests taken as a primary consideration’ (2013) (hereafter CRC Committee, GC No. 14 (2013); CRC Committee General Comment No. 12, ‘The right of the child to be heard’ (2009) (hereafter CRC Committee, GC No. 12. (2009). Given that the CRC Committee has not fully explored the meaning and application of the ‘general principles’ as a set, there is concern that how the CRC Committee interprets and applies the general principles may create ‘unintended effects’. Hanson & Lundy (2017) 286. 70 The general comment provides specific guidance for the implementation of art 12 and art 3 and on the links between these articles and other articles of the CRC and their meaning for the implementation of these other articles, among others. See generally CRC Committee, GC No. 14 (2013) & GC No. 12 (2009). Buck T International Child Law, 3 ed (2014) 138.
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should be applied to the interpretation and implementation all the rights in the Convention.71
Similarly, the ACRWC provides for the four rights that make up the four general principles of
the CRC and they too have been described as the ‘soul’ of the Charter.72
In respect of the CRPD, article 3 identifies eight principles foundational to the Convention.73
These are respect for inherent dignity, individual autonomy including the freedom to make
one’s own choices, and independence of persons; non-discrimination; full and effective
participation and inclusion in society; respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity; equality of opportunity; accessibility;
equality between men and women; and respect for the evolving capacities of children with
disabilities and their right to preserve their identities.74 As is the case in the CRC, the purpose
of these general principles is to aid interpretation of the Convention’s substantive obligations.75
The principles serve as a basis for ‘understanding and interpreting the rights of persons with
disabilities and [are] central to monitoring the rights of persons with disabilities, providing
benchmarks against which each right is measured’.76 They should also be used as a benchmark
71 CRC Committee GC No. 12 (2009) para 2; CRC Committee GC No. 14 (2013) para 1. 72 Gose M The African Charter on the Rights and Welfare of the Child (2002) 17. 73 Fina VD ‘Article 3 [General principles]’ in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 120. 74 The CRPD is the first international human rights treaty to include ‘general principles’ in a stand-alone article; unlike in the CRC, the principles are not attached to specific articles of the CRPD but apply across the whole Convention. The CRPD’s general principles are expressly set out in the Convention as its general principles, unlike in the CRC where the Committee had to develop the cardinal principles through its reporting guidelines and general comments. Of the eight principles, the first five appeared in the draft art 2 prepared by the Working Group in 2004. These principles were little contested and only somewhat altered. Schulze M Understanding the UN Convention on the Rights of Persons with Disabilities (2010) 45; Fina (2017) 120–21. 75 Of the four general principles of the CRC, art 6, which concerns the right to life, survival and development, is the only one not included in the CRPD as a general principle. It is claimed, however, that this principle can be inferred from the principle of the best interests of the child. Willems, JCM ‘Principles and promises in the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities’ in Waddington, L; Quinn, G & Flynn, E (eds) (2012) European Yearbook of Disability Law 13. 76 OHCHR (2010) 17.
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in which to evaluate whether a specific domestic law is in line with the ‘object and purpose of
the CRPD’.77
For the purpose of this thesis, the principle of non-discrimination will be discussed together
with the respective obligations in the CRC and ACRWC. The reason for focusing on only the
non-discrimination obligation is because it has a direct bearing on the alternative care of
children with disabilities.
Below is an evaluation of the content and application of these principles in the CRC, ACRWC
and the CRPD to the rights of children with disabilities to alternative care.
3.5.1 Non-discrimination
The provision on non-discrimination in article 2 of the CRC78 provides that
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
The non-discrimination obligation has been characterised as a norm of jus cogens to which
derogation from and reservation to would not have any effect.79 Article 2 is of particular
importance to children with disabilities as it prohibits disability-based discrimination by listing
disability among the prohibited grounds for discrimination.80 It affords protection from
77 Lord JE & Stein MA ‘The domestic incorporation of human rights law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 460; Fina (2017) 120. 78 Hodgkin R & Newell P Implementation Handbook for the Convention on the Rights of the Child (2007) 22. Abramson (2008) 19; see also CRC Committee General Comment No. 3 ‘HIV/AIDS and the rights of the child’ (2003) para 6; and CRC Committee General Comment No. 5 ‘General measures of implementation of the Convention on the Rights of the Child’ (2003) (hereafter CRC Committee, GC No. 5. (2003) paras 4 and 12. 79 Shabas WA ‘Reservations to the Convention on the Rights of the Child’ (1996) 18(2) Human Rights Quarterly 480. 80 Byrne (2012) 423.
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discrimination on the basis not only of the child’s disability but that of his or her parents or
guardians.81
The obligation to ‘ensure’ is also a high obligation and surpasses the obligation to ‘respect’ as
it indicates that State Parties have to take positive steps to enable individuals to enjoy and
exercise their rights.82 The CRC Committee also reflects the same approach when it asserts that
the obligation to ensure non-discrimination necessitates that the state take ‘proactive measures’
to ensure that every child is given equal opportunities to exercise the rights in the Convention.83
Moreover, positive discrimination in the form of affirmative action on behalf of disadvantaged
or vulnerable groups, including children with disabilities, is also a component of the obligation
not to discriminate.84
In regard to the nature of states’ obligations under the treaties, the CRC and the CRPD make
the implementation of economic, social and cultural rights subject to progressive realisation to
the maximum extent of states’ available resources.85 This does not include those obligations
which must be implemented immediately in terms of international law, such as the obligation
to ensure non-discrimination.86 This implies that states have an immediate obligation to ensure
that children with disabilities are not discriminated against in the provision of alternative care
services. For instance, the routine placement of children with disabilities constitutes
discrimination on the basis of disability. The immediate applicability of the non-discrimination
obligation entails that states have to examine current legislation, policies, practices and
81 CRC, art 2; Cohen C ‘The United Nations Convention on the Rights of the Child: A feminist landmark’ (1997) 3 William & Mary Journal of Race, Gender, and Social Justice 34. 82 Buck (2014) 132. 83 CRC Committee, GC No. 14. (2013) para 41. 84 Besson S ‘The principle of non-discrimination in the Convention on the Rights of the Child’ (2005) 13 The International Journal of Children’s Rights 452. 85 In the CRC Committee’s view, the reference to ‘resource availability’ reflects a recognition of the reality that the full realisation of socio-economic rights is generally not achievable in a short period of time and can be hampered by lack of sufficient resources. CRC, art 4; CRC Committee, GC No. 5. (2003) paras 6 and 7. In relation to the CRPD, see art 4(2); Schulze (2010) 56–7; OHCHR (2010) 28–9. 86 OHCHR (2010) 29; CRPD arts. 4(2) and 32; Besson (2005) 447.
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procedures to ensure that children with disabilities are not discriminated against in alternative
care measures and that they have equal access to family-based alternatives when they are
deprived of their family environment.
In regard to obligations pertaining to the principle of non-discrimination in relation to children
with disabilities, the CRC Committee has issued guidance in its General Comment No. 9.87
Here, it is indicated that, notwithstanding limited budgetary resources, this principle is
applicable to ‘each child within (a state party’s) jurisdiction’.88 Thus, states cannot use lack of
resources to justify discrimination against children with disabilities in alternative care
measures.89 The Committee expects State Parties to implement the right by, inter alia, including
disability as a prohibited ground of discrimination in constitutions and legislation; providing
effective and accessible remedies in case of violations; and taking extra measures to protect
girls with disabilities and ensure their access to services and full inclusion in society.90
Additional measures to implement the obligation to ensure non-discrimination include
awareness-raising and educational campaigns aimed at diminishing and eradicating de facto
discrimination against children with disabilities.91
Moreover, the duty not to discriminate applies not only to the state but to private institutions
and individuals.92 To this end, the CRC Committee requires that domestic legislation extend
the obligation not to-discriminate to both the state and private sector.93 Thus, in cases where
states outsource the provision of alternative care to the private sector, the state remains
87 CRC Committee General Comment No. 9 ‘The rights of children with disabilities’ (2006) (hereafter CRC Committee, GC No.9. (2006). 88 Mezmur (2017) 411. 89 CRC, art 20. 90 CRC Committee, GC No. 9, paras 9(a)(b) and 10. 91 CRC Committee, GC No. 9, paras 9(c). 92 Hodgkin & Newell (2007) 22; Abramson (2008) 103. 93 CRC Committee Concluding Observations on Zimbabwe (1996) (UN Doc CRC/C/15/Add.55), para 12 as cited in Hodgkin & Newell (2008) 22.
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responsible for ensuring that non-state actors are subject to and compliant with the non-
discrimination obligation and equality norms in relation to children with disabilities.
The corresponding right to the non-discrimination principle is found under article 3 of the
ACRWC, which uses similar wording to the CRC.94 A major difference between the two
provisions is that, unlike the CRC, the ACRWC fails to prohibit discrimination based on
disability in that it does not list ‘disability’ among the prohibited grounds for discrimination.95
This omission is regrettable as the ACRWC did not take advantage of the opportunity to
reaffirm the rights of children with disabilities.96 However, the omission should not be used as
a basis to argue that the ACRWC permits disability-based discrimination, since article 3 makes
it mandatory for ‘every child’ to enjoy the rights under the Charter without discrimination, a
provision that includes children with disabilities.97 The phrase ‘other status’ can also be
extended to include ‘disability’, thereby affording children with disabilities protection against
discrimination,98 including in regard to their right to alternative care.
Under the CRPD, equality and non-discrimination are considered as both a principle and a
stand-alone right.99 The CRPD defines the discrimination on the basis of disability as
any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.100
94 Gose (2002) 47. Article 3 provides: ‘Every child shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.’ 95 Gose (2002) 48. 96 Gose (2002) 48. 97 See Gose (2002) 48; Combrinck H ‘The hidden ones: Children with disabilities in Africa and the right to education’ in Sloth- Nielsen J (ed) Children’s Rights in Africa: A Legal Perspective (2008) 310. 98 Biegon J ‘The promotion and protection of disability rights in the African human rights system’ in Grobbelaar-du Plessis I & Van Reenen T (eds) Aspects of Disability Law in Africa (2011) 62. 99 CRPD Committee General Comment No. 6 ‘Equality and non-discrimination’ (2018), para 12 (hereafter CRPD Committee, GC No. 6. (2018). See CRPD, arts 3(b) and 5. 100 CRPD, art 2.
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The CRPD is distinct from the obligation stipulated in the CRC and the ACRWC in respect of
the non-discrimination obligation as it contains a broad definition of discrimination on grounds
of disability, by recognising ‘discrimination on the basis of disability as including denial of
reasonable accommodation’.101 The CRPD’s explicit recognition of the provision of reasonable
accommodation as an integral component of the non-discrimination obligation has been
acclaimed as offering the ‘highest normative standard of the right to freedom from disability-
based discrimination’.102 Reasonable accommodation has been defined in the CRPD as a
necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.103
In other words, reasonable accommodation is an essential element in ensuring that children
with disabilities are on a ‘level playing field’ as other people.104 Reasonable accommodation
is part of a broad legal framework necessary to achieve de facto and substantive equality.105
The CRPD Committee in its General Comment No. 6 on equality and non-discrimination has
emphasised that ‘reasonable accommodation is also an intrinsic part of the immediately
applicable duty of non-discrimination in the context of disability’.106 In terms of this approach,
the institutionalisation of children with disabilities deprived of family environment due to
reasons such as lack of training of potential caregivers may amount not only to direct violation
of a substantive right (article 23(5) but also to discrimination on the basis of disability and lack
101 CRPD, art 2. 102 Chilemba EM ‘International law on the rights of children with disabilities’ in Kilkelly U & Liefaard T (eds) International Human Rights of Children (2019) 370. 103 CRPD, art 2. 104 McCallum R & Martin H ‘Comment: The CRPD and children with disabilities’ (2013) 20 Australian International Law Journal 21. 105 McCallum (2013) 21. 106 CRPD Committee, GC No. 6. (2018) para 23.
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of reasonable accommodation. It should be noted that the obligation to ensure non-
discrimination is an obligation of immediate realisation.107
In view of the above, it is established that the CRPD and the CRC provide stronger protection
to children with disabilities in respect of explicitly prohibiting discrimination on the basis of
the disability of the child. Furthermore, the CRC and ACRWC prohibit the discrimination of a
child on the basis of the child’s disability and the disability of parents or legal guardians in the
enjoyment of the rights in the Convention. Discrimination by the state and private sector is also
prohibited. The CRPD elevates the obligation to ensure non-discrimination by making the
denial of reasonable accommodation constitute discrimination on the basis of disability.
The obligation to ensure non-discrimination has a direct bearing on alternative care for children
with disabilities. First, the non-discrimination obligation is intended to address discriminatory
practices that often lead to a child’s deprivation of family environment and subsequent
placement in alternative care.108 In the context of the alternative care of children with
disabilities, the obligation to ensure non-discrimination is of particular importance as social
and structural discrimination play a major role in loss of family environment and placement in
alternative care.109 The right of non-discrimination would thus entail addressing all forms of
disability-based discrimination that could cause unnecessary separation from families or
impede family preservation.
Secondly, the non-discrimination obligation is also applicable as it entails taking the necessary
measures to ensure that vulnerable groups, including children with disabilities, have equal
opportunities in growing up in a family environment110 such as through having equal access to
107 CRPD Committee, GC No. 6. (2018) para 12. 108 Cantwell & Holzscheiter (2008) 6; Mezmur (2009) 138. 109 See s 1(1) of Chapter one of this thesis, for further discussion on the factors driving the placement of children with disabilities in alternative care. 110 Mezmur (2009) 138.
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family-based alternative care when they are unable to live with their families. For instance, the
routine placement of children with disabilities in institutional care can amount to direct
discrimination on the basis of disability. In view of the discussion above on special measures
and affirmative action to ensure equality, it is crucial for states to take positive measures to
ensure non-discrimination against children with disabilities as regards access to family-based
alternative care options like foster care. This could involve, for instance, raising awareness to
change societal attitudes towards children with disabilities that perpetuate their placement in
institutional care and impede efforts to find family-based alternatives. It could also involve
providing proper training to foster carers to enable them to care for children with disabilities.
In terms of article 20 of the CRC, preference is given to family-based alternative care over
institutional care, and in view of the right of non-discrimination, this must apply equally to
children with disabilities.111 The above argument is in keeping with article 23 of the CRC in
the sense that the primary purpose of the provision is the elimination of discrimination against
children with disabilities in various aspects of their lives and the promotion of their ‘active
participation in the community’ and social integration to the fullest extent possible.
Thirdly, the right to non-discrimination is applicable to ‘guarantee equivalent rights and
protections’112 for children with disabilities who are already in alternative care. Once placed in
institutions, children deprived of their family environment face ‘widespread discrimination
with respect to access to education, health and other social services’.113 This right (to non-
discrimination) serves to ensure that children with disabilities’ rights to education and health
care, among other things, are realised in alternative care. Considering that discrimination on
the basis of disability is common in alternative care, attention needs to be given to children
111 Hodgkin & Newell (2007) 22. Abramson (2008) 337. 112 Mezmur (2009) 138. 113 Cantwell & Holzscheiter (2008) 6.
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with disabilities in respect of article 20 of the CRC.114 For children with disabilities, the denial
of their rights on the basis of the severity of their impairment is common, not just in institutions
but in their homes, foster homes, or other family-like residential placements.115 These children
may be thus be subjected to the culture of institutionalisation without actually being placed in
institutions, by being kept at home, educated separately and isolated from or rejected by their
communities.116 For instance, the denial of access to health care for children with severe
intellectual disabilities in institutions is based on the misconception that treatment would not
make a difference anyway as there is no cure for such children.117 Thus, the obligation to ensure
non-discrimination would entail taking additional measures to ensure that children with
disabilities, including children with severe intellectual disabilities, placed in alternative care
enjoy all the rights in the Convention without discrimination, and to ensure that they equal have
access to education, health care and social services.
3.5.2 The best interests of the child
Under the CRC, article 3(1) requires that the ‘[i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary
consideration’.118 The CRC itself does not define what constitutes the best interests of the
child,119 a concept that remains shrouded in controversy and regarded as ‘vague’ due to the fact
114 Cantwell & Holzscheiter (2008) 6–7. 115 WHO Better Health, Better Lives: Children and Young People with Intellectual Disabilities and their Families (2010) 10. 116 WHO (2010) 10. 117 WHO (2010) 11. 118 See CRC, art 3(1). The principle of the best interests first appeared in the 1959 Declaration of the Rights of the Child and subsequently found its way into the CRC, ACRWC, and CRPD. The principle has become a benchmark against which to evaluate all the laws, policies and actions of a state that affect children. Mezmur (2009) 113; Cantwell N The Best Interests of the Child in Intercountry Adoption (2014) 6; Freeman M A Commentary on the United Nations Convention on the Rights of the Child: Article 3: The Best Interests of the Child (2007) 1. 119 The definition of ‘best interests’ was not discussed further by the Working Group drafting the CRC, although there is evidence of attempts to give flesh to the concept in the first polished draft. Freeman (2007) 50; Hodgkin & Newell (2007) 37. However, the meaning of the concept did not receive any attention during the drafting stages, which has been attributed to the familiarity of the drafters with the term from its ‘extensive usage in the domestic
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that its meaning varies depending on ‘social and political context, and the subjective point of
view of the judge, parent, or social worker who applies it’.120 Due to its indeterminate nature,
the principle has been a topic of scholarly debate over the years.121 The controversy is not
limited to the meaning of the concept but extends to the ‘weighting’ or ‘prioritisation’ to be
given to the best interests of the child relative to other interests.122
As mentioned above, the CRC Committee has issued a separate general comment on the
principle of the best interests of the child, in addition to making various references to the
concept in previous general comments.123 The Committee asserts the main goal of the best
interests standard is to ‘fully and effectively’ ensure the ‘enjoyment of all the rights recognized
in the Convention and the holistic development of the child’.124 The Committee further requires
the term ‘development’ to be interpreted in its broadest sense as to include ‘the child’s physical,
mental, spiritual, moral, psychological and social development’.125Given the indeterminate
nature of the principle, the Committee has acknowledged that its application requires ‘a degree
of flexibility’ and that it be determined on a case-by-case basis.126
In an attempt to clarify the concept, the CRC Committee assigns three roles to the best interests
of the child standard: a substantive right; a fundamental interpretative legal principle; and a
rule of procedure.127 The best interests of the child as a substantive right bestows a right on the
law of many countries’. Kilkelly U ‘The best interests of the child: A gateway to children’s rights?’ in Sutherland EE & Macfarlane LB (eds) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (2016) 53. 120 Peleg N ‘International children’s rights Law: General principles’ in Kilkelly U & Liefaard T (eds) International Human Rights of Children (2019) 141. 121 See, for example, Mezmur (2009) 118; Elster J ‘Solomonic judgments: Against the best interest of the child’ 54 (1987) University of Chicago Law Review 12. 122 Eekelaar J ‘Two dimensions of the best interests principle: Decisions about children and decisions affecting children’ in Sutherland EE & Macfarlane LB (eds) Implementing Article 3 of the United Nationals Convention on the Rights of the Child: Best Interests, Welfare and Well-being (2016) 99. 123 CRC Committee GC No. 14. (2013). 124 CRC Committee, GC No. 14. (2013), para 4. 125 CRC Committee, GC No. 5 (2003), para 12. 126 CRC Committee, GC No. 14. (2013) paras 39 and 32. 127 CRC Committee, GC No. 14. (2013), para 6(a)–(c). Sutherland EE ‘Article 3 of the United Nations Convention on the Rights of the Child: The challenges of vagueness and priorities’ in Sutherland EE & Macfarlane LB (eds)
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child that his or her interests are to be assessed and taken as a primary consideration in reaching
decisions affecting him or her.128 In this respect, it has been argued that a distinction needs to
be made when applying the principle in decisions that directly and indirectly affect children.129
The latter scenario requires decision-makers to focus on achieving the ‘best’ solution to the
issue to be decided rather than on what outcome would be best for the child,130 whereas in
respect to the former case, the focus is on obtaining the ‘best outcome for the child’.131
Choosing what is best for the child entails ‘a holistic examination of a wide range of possible
outcomes, and, subject to weighting, other relevant interests’.132
The best interests standard as an interpretative principle entails choosing an interpretation of a
legal provision which best serves the child’s best interests.133 It is noteworthy that the best
interests of the child under the CRC are considered ‘a’ primary consideration as opposed to
‘the’ primary consideration, which implies that the principle is not an overriding or paramount
consideration.134 The best interests of the child are therefore to be balanced with other
interests.135 In circumstances where there are conflicting interests, the consideration of the best
interests of the child as ‘a’ primary consideration requires that these interests be given ‘high
priority’ and not merely be ‘one of several considerations’.136
Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Wellbeing (2016) 22. 128 CRC Committee, GC No. 14. (2013), para 6(a). 129 Eekelaar (2016) 5. 130 Eekelaar (2016) 99–100. 131 Eekelaar (2016) 99–100. 132 Eekelaar (2016) 100. 133 CRC Committee, GC No. 14 (2013) para 6(b). 134 CRC Committee, GC No. 5 (2003) paras 36–40; Amanda L ‘A theoretical analysis of the reality of children's rights in Africa: An introduction to the African Charter on the Rights and Welfare of the Child’ (2002) 2 African Human Rights Law Journal 17. 135 Wording to the effect that the best interests of the child shall be ‘the primary consideration’ was considered but rejected during the drafting of the CRC in view of the broad scope of application – namely, ‘in all actions considering children’. Freeman M (2007) 6. Detrick S (1992) 132–33. 136 CRC Committee, GC No. 14 (2013) para 39.
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The best interests of the child as a procedural rule requires that any decision-making process
has to involve an ‘evaluation of the possible impact (positive or negative) of the decision on
the child or children concerned’.137 The determination of the best interests of the child also
necessitates ‘procedural guarantees’; accordingly, states must demonstrate that decision-
making has considered the best interests of the child and indicate how the child’s interests have
been weighed against other considerations.138 Thus, although the best interests of the child will
not always prevail over other interests, they should always be deliberately taken into account;
it needs to be demonstratable that they have been explored and considered.139 The obligation
to ‘consider’ the best interests of the child entails taking into account those interests and not
just simply observing them.140
The word ‘action’ under article 3(1) is said to include ‘all acts, conduct, proposals, services,
procedures and other measures’ in addition to decisions.141 In this case, failure to act or inaction
and omission also falls under article 3(1); for instance, social welfare authorities are acting
against the best interests of the child when they fail to take action to protect the child from
abuse and neglect.142
In the context of alternative care, the indeterminate nature of the best interests principle implies
that there cannot be a ‘one solution fits all’ approach in determining whether a certain form of
alternative care is suitable to a particular child. Through all stages of placement in alternative
care, the determination of what is in the best interests of a particular child with a disability
should be carried out on a case-by-case basis. However, given the segregatory nature of
137 CRC Committee, GC No. 14 (2013) para 6(c). 138 CRC Committee, GC No. 14 (2013) para 6(c). 139 Hodgkin & Newell (2007) 38. 140 Mahery P ‘The United Nations Convention on the Rights of the Child: Maintaining its value in international and South African child law’ in Boezaart T (ed) Child Law in South Africa (2009) 319. 141 See CRC Committee, GC No. 14 (2013) para 17. 142 See CRC Committee, GC No. 14 (2013) para 18.
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institutional care, there is ‘little evidence’ to claim that this form of care is in the best interests
of a child.143 The CRC Committee offers a list of ‘non-exhaustive and non-hierarchical’
elements to be considered by decision-makers in respect of the assessment and determination
of the best interests of the child.144 These elements include the child’s views; the child’s
identity; preservation of family environment and maintaining relations; care, protection and
safety; situations of vulnerability; right to health; and right to education.145
In applying the Committee’s interpretation of the elements to be considered in the context of
the alternative care of children with disabilities, the determination of what is in the best interests
of a given child with a disability in the context of alternative care entails taking into account
his or her situation of vulnerability by considering the disability of the child when choosing the
form of alternative care.146 Consideration of situations of vulnerability in the context of
disability also means taking into account that the best interests of a child with a disability will
not be the same as those of other children without disabilities – in other words, it involves
giving due regard to the ‘the different kind and degrees of vulnerability of each child, as each
child is unique and each situation must be assessed according to the child’s uniqueness’.147
Another element to consider is whether a particular form of alternative care facilitates the care,
protection and safety of the child – such care should involve not just protection from harm but
promote the ‘material, physical, educational, and emotional needs, as well as needs for
affection and safety’ of the child.148 Consideration has to be given to whether the particular
143 UNICEF Innocenti Research Centre Promoting the Rights of Children with Disabilities (2007) 18. 144 Given that the elements to be considered are non-exhaustive, it provides the opportunity for other elements to be considered. This is supported by the Committee’s allowance for other elements to be added in accordance with the ‘legal tradition’ of the state, unless those elements are contrary to the rights in the Convention. CRC Committee, GC No. 14 (2013) para 51–2. Sutherland (2016) 38. 145 CRC Committee, GC No. 14 (2013) paras 52–79. 146 CRC Committee, GC No. 14 (2013) para 71. 147 CRC Committee, GC No. 14 (2013) para 76. 148 CRC Committee, GC No. 14 (2013) para 71.
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form of care allows the child to form an attachment to a caregiver149 as well as to how well it
protects the child from violence, abuse and exploitation.150 When assessing and determining
the best interests of children with disabilities in the context of placement in alternative care, it
is also crucial to take into account the potential future harm and risk that the form of care
presents to the child at the current time as well as in the long-term.151
Moreover, the principle has to be understood in the light of other rights under the CRC and in
relation to the other three general principles.152 Usually it is very unlikely that a measure not in
line with the other three general principles of the CRC and ACRWC would be in the best
interests of the child.153 Thus, the other three general principles154 are of particular importance
in determining the best interests of a child or group of children.155 Children who can form views
have the right to express them in relation to what is in their best interests, and these views
should be given due consideration.156
Along the same lines, the CRC Committee acknowledges the friction between welfare and
rights, as it states that ‘an adult’s judgement of a child’s best interests cannot override the
obligation to respect all the child’s rights under the Convention’.157 For instance in countries
where the medical model of disability is still prevalent, the belief may be that institutional care
is in the best interests of a given child with a disability deprived of family environment.158
Thus, given the dangers of over-reliance on the best interests principle, it has been noted that
149 CRC committee, GC No. 14 (2013) para 72. 150 CRC Committee, GC No. 14 (2013) para 73. 151 CRC Committee, GC No. 14 (2013) para 74. 152 Archard D and Skivenes M ‘Balancing a child’s best interests and a child’s views’ (2009) 17 International Journal of Children’s Rights 2. 153 Mezmur (2009) 119. 154 These are the principles of non-discrimination, right to life and maximum survival and development, and respect for the views of the child. 155 Mahery (2009) 318. 156 Vandenhole W ‘Children’s rights from a legal perspective: Children’s rights law’ in Vandenhole W, Desmet E, Reynaert D, et al (eds) Routledge International Handbook of Children’s Rights Studies (2015) 32. 157 CRC Committee, GC No. 14 (2013) para 4; Sutherland (2016) 34–5. 158 Sutherland (2016) 34–5.
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its application has to be balanced and complemented by the recognition of other rights in the
Convention, including children’s right to participate in matters affecting them.159
Although the scope of the General Principle is limited to article 3(1) of the CRC, article 3(3)
has further implications for the right to alternative care, which will be discussed in later sections
along with the obligation to periodically review alternative care placements.160
The ACRWC adopts a similar but higher standard than the CRC in requiring that the best
interests of the child be the primary consideration in all actions concerning the child.161 This
means that they trump other interests.162 In doing so, the ACRWC raises the bar by elevating
the status of the best interests of the child above other considerations and not allowing them to
override the interests of children. The phrase ‘any person or authority’ also suggests that the
best interests principle in the ACRWC is broader than it is in the CRC.163 Both provisions are
said to be applicable to states as well as to non-state actors. It has been argued that this provision
is important considering that, in many African countries, services to children are provided by
private actors.164
The best interests standard is reiterated in article 20 of the CRC.165 However, in the context of
article 20, the best interests of the child are not intended to be applicable to decisions regarding
placement in alternative care but to be used to determine the removal of a child from his or her
family environment, as envisaged in article 9 of the Convention.166 However article 25 of the
ACRWC envisions that the best interests of the child are considered both in the decision to take
159 Sutherland (2016) 34–5. 160 See s 3(8) of Chapter 3 of this thesis. 161 ACRWC, art 4(1) (emphasis added). Chirwa (2002) 160; Mahery (2009) 319. 162 Vandenhole (2015) 32. 163 Freeman (2007) 21; Mezmur (2009) 117. 164 Lim H Legally Recognising Child-Headed Households Through a Rights-Based Approach: The Case of South Africa (unpublished LLD thesis, University of Pretoria, 2010) 141. 165 Article 20(1) of the CRC reads: ‘A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.’ Emphasis added. 166 Cantwell & Holzscheiter (2008) 48.
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the child out of his or her family environment, as well as in any decision regarding the choice
of an alternative placement.167 It is argued that the best interests principle in the ACRWC is
stronger than its counterpart, the CRC.168
3.5.3 The right to life, survival and development
The right to life, survival and development, derived from article 6 of the CRC, is one of the
four general principles and therefore informs the interpretation of all the articles in the
Convention.169 Its counterpart can be found in article 5 of ACRWC, which also provides that
every child has an inherent right to life, that this right must be protected by law, and that states
are obligated to ensure the survival, protection and development of the child.170 It has been
stressed by the CRC Committee that this principle calls for an emphasis on children with
disabilities, due to the significant barriers that they face in the enjoyment of their rights and are
subjected to practices that undermine their survival and development.171
There is a direct link between child survival and child development in the sense that the
maximum survival and development engages a process that begins from survival and advances
to an outcome of optimum child development.172 In respect of the ‘development’ aspect of the
right, the CRC Committee defines the term broadly to include the ‘physical, mental,
psychological and social development’ of the child.173
Both the CRC and the ACRWC obligate states to ensure the realisation of this right to the
maximum extent possible.174 As with other economic, social, and cultural rights contained in
167 See art 25(3) of the ACRWC. See also Cantwell & Holzscheiter (2008) 23. 168 Cantwell & Holzscheiter (2008) 23. 169 Article 6 of the CRC. 170 ACRWC art 5(1) and (2). 171 CRC Committee, GC No. 9 (2006) para 31. For further discussion on the principle of the child’s life, survival and development, see generally Nowak M A Commentary on the United Nations Convention on the Rights of the Child: Article 6: The Right to Life, Survival and Development (2005). 172 Dutschke M & Abrahams K ‘Children’s right to maximum survival and development’ (2006) 1. 173 See CRC Committee, GC No. 5 (2003), para 12. 174 See CRC, art 6(2) and ACRWC, art 5(2).
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the Convention, the obligation is toned down by a qualifying phrase – ‘to the maximum extent
possible’.175 The phrase, appearing in article 5(2) of the ACRWC and 6(2) of the CRC, implies
that measures in this respect are relative to the state’s level of development.176
The principle of the right to life, survival and development is particularly relevant where
children with disabilities deprived of their family environment are concerned because the way
in which children are cared for has a profound effect on their survival and development.177
Moreover, the significance of this principle lies in the consideration that the family is the main
source of support for life, development and survival and that its absence thus leaves children
exposed in a vulnerable situation.178 The CRC Committee, in its Day of General Discussion on
Children without Parental Care held in 2005, underscored the importance that growing up in a
family environment has for children’s development.179 It recommends that states avoid the
long-term placement of children in institutional care, as it does not meet the survival and
developmental needs of children.180 The extensive evidence of the negative effects of
institutional care on the healthy development of the child also reaffirms the argument that
placement of a child with a disability in institutional care is against the principle of the best
interests of the child and the right to survival and development.181 Such a setting often fails to
provide children with an environment that allows them to develop holistically.182
175 Mower AG The Convention on the Rights of the Child: International Law Support for Children (1997) 31. 176 Murungi LN The Significance of Article 24(2) of the UN Convention on the Rights of Persons with Disabilities for the Right to Primary Education of Children with Disabilities: A Comparative Study of Kenya and South Africa (unpublished LL D thesis, University of the Western Cape, 2013) 148. 177 Richter L The importance of caregiver-child interactions for the survival and healthy development of young children: A review (2004) 2. 178 Assim (2013) 100. 179 See CRC Committee, Day of General Discussion ‘Children without parental care’ (2005) para 665. 180 See CRC Committee, Day of General Discussion ‘Children without parental care’ (2005) para 666. 181 See s 1(1) of Chapter 1 of this thesis, for further discussion on the negative effects of institutionalisation on the development and wellbeing of children. 182 See OHCHR Regional Office for Europe (2012) 9–10.
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Moreover, the placement of children in institutions restricts the evolving capacities of the child
as it results in the child becoming overly dependent on others and losing his or her autonomy.183
Institutionalisation, in other words, often results in loss of independence and autonomy due to
its segregated nature.184 In the light of this, it can be argued that the principle of the right to
survival and development entails the provision of family-based alternatives to children with
disabilities deprived of their family environment as these alternatives can facilitate their right
to survive and develop.
3.5.4 Child participation
The right to participation encompasses a number of rights, the most central of which is the right
to express one’s view and have that view taken into account.185 Article 12(1) requires states to
‘assure to the child who is capable of forming his or her own views the right to express those
views freely in all matters affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child’. The phrase ‘assure to the child’ implies that
states are under an obligation to take measures to ensure the realisation of the child’s rights in
this regard by adopting the necessary legislation and policy to this effect.186
The CRC Committee provides guidance on the practical requirements for implementation of
the principle of participation. It has underscored that the phrase ‘shall assure’ in article 12
imposes a strong obligation that does not leave any room for states’ discretion.187 It has further
been stressed that the word ‘assure’ implies a ‘positive obligation to take proactive steps to
encourage children to express their views; that is, to invite and encourage their input rather
183 Dunn A, Jareg E & Webb D A last resort: The growing concern about children in residential care (2003) 12. 184 Dunn et al. (2003) 12. 185 Vandenhole (2015) 32. 186 Lansdown G Every child’s right to be heard: A guide on the UN Committee on the Rights of the Child General Comment No. 12 (2011) 19. 187 CRC Committee, GC No. 12 (2009), para 19.
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than simply acting as a recipient of views if children happen to provide them’.188 In this regard,
the importance of understanding the concept of child’s participation from a rights-based
perspective, as opposed to a matter of choice, has been stressed.189 This is particularly
important considering adults’ inclination to rationalise not giving due weight to the views of
children.190 The Committee further points out that the phrase ‘capable of forming his/her own
views’ should not be viewed as a ‘limitation’ but be interpreted to the advantage of the child
by assuming that the child is capable of forming his or her own views.191 It has also stressed
that article 12 does not impose a minimum age limit at which children can start expressing their
views freely, nor does it put a restriction on the contexts in which children can express their
views.192 As such, the CRC recognises that children are capable of forming views from a very
early age, and refers to children’s ‘evolving capacity’ for decision-making.193
Through the insertion of the term ‘maturity’, article 12 implicitly acknowledges that a child’s
degree of perception is not ‘uniformly’ related to his or her age and therefore should not be the
only determining factor in evaluating the relevance of a child’s views.194 The CRC Committee
has described maturity as
the ability to understand and assess the implications of a particular matter [… It] must therefore be considered when determining the individual capacity of a child. Maturity is difficult to define; in the context of art 12, it is the capacity of the child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of the child.195
188 Lundy L “Voice” is not enough: Conceptualising article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 933–34. 189 Lundy (2007) 931. 190 Lundy (2007) 931. 191 CRC Committee, GC No. 12 (2009), para 20. 192 CRC Committee, GC No. 12 (2009), para 21. 193 CRC Committee, GC No. 12 (2009), paras 84–5. 194 CRC Committee, GC No. 12 (2009), para 29. 195 CRC Committee, GC No. 12 (2009), para 30.
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Taking into account the factors contributing to level of understanding of a child, including
information, experience, environment, social and cultural expectations, and levels of support,
the Committee requires that the capacity of a child be determined on a case-by-case basis.196
Moreover, the provision is significant in that it requires the views of the child not just to be
heard but to be given ‘due weight.’197 In this regard, it has been argued that although the phrase
‘in accordance with the age and maturity of the child’ may be misconstrued to restrict the right
of the child to participate, however the ‘age and maturity of the child’ only determines the level
of weight that the child’s views should receive.198 This indicates that the child’s right to express
his or her views is not dependent on his or her level of maturity.199 However, this may be
problematic to the extent that it is ultimately leaves the determination of the level of weight to
be given to the views of the child to the discretion of adults’ ‘perception of children’s
capacity’.200
The principle of child participation is particularly important in realising the rights of children
with disabilities, given that in most societies children with disabilities are considered inferior,
incapable and unworthy of having an opinion.201 In respect of children with disabilities, the
implementation article 12 presents an added challenge as the general presumption that children
lack the maturity to express views is heightened in the case of children with disabilities as they
experience a two-fold discrimination – both on the basis of their age and disability.202 In this
regard, in relation to children with disabilities, additional measure may be necessary to ensure
the realisation of this right.203
196 CRC Committee, GC No. 12 (2009), para 29. 197 CRC, art 12(1). 198 Lundy (2007) 935. 199 Lundy (2007) 935. 200 Lundy (2007) 937. 201 Kilkelly U ‘Disability and children: The Convention on the Rights of the Child (CRC)’ in Quinn G & Degenner T (eds) Human Rights and Disability (2002) 121. 202 Byrne (2012) 430. 203 Lansdown (2011) 19.
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The CRC Committee in its General Comment No. 12 explicitly takes into account the needs of
children with disabilities in respect of facilitating their participation in a number of
circumstances.204 First, it requires states to ensure the implementation of article 12 without
discrimination on the grounds listed in article 2 of the CRC, including disability, and further
requires states to address discrimination that excludes marginalised children from participating
in all matters affecting them on an equal basis with others.205 The Committee also recognises
the obligation imposed on states by article 7(3) of the CRPD, which requires children with
disabilities to be provided with the appropriate assistance to enable them to express their views
freely and have those views be given due weight.206 The Committee strengthens this position
by requiring states to ensure the participation of children with disabilities by facilitating the use
of ‘any mode of communication’ through which they could express their views.207 This could
be achieved by, among others, the provision of assistive devices and the involvement of
interpreters to facilitate the participation of children with disabilities.208
The CRC Committee has stressed the importance of participation of children with disabilities
in General Comment No. 9 and requires states to consider the evolving capacities of children
with disabilities in respecting their views.209 It has expressed concern over the fact that it is
common for the views of children with disabilities not be sought and heard during separation
and placement processes.210 To this end, the Committee urges states to increase their efforts in
ensuring that the views of children with disabilities are taken into account and to support their
204 CRC Committee, GC No. 12 (2009), paras 9, 20, 100 and115. Nonetheless, the CRC Committee has faced criticism for failing to adequately elaborate on the content of article 12 in the context of children with disabilities in its GC No. 12. Sandland R ‘A clash of Conventions? Participation, power and the rights of disabled children’ (2017) 5 Social Inclusion 100. 205 CRC Committee, GC No. 12 (2009), para 75. 206 CRC Committee, GC No. 12 (2009), para 78. Despite the Committee’s reference to art 7(3) in its GC No. 12, it has been criticised for failing to elaborate on the provision in a detailed manner. Sandland (2017) 99–100. 207 CRC Committee, GC No. 12 (2009), para 21. 208 Lundy (2007) 936. 209 CRC Committee, GC No. 9 (2006), para 32; CRC Committee, GC No. 12, paras 31 and 84. 210 CRC Committee, GC No. 9 (2006), para 48.
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participation during the ‘evaluation, separation and placement process in out-of-home care, and
during the transition process’.211
A similar provision in the ACRWC requires that a child capable of communicating his or her
own views should be accorded the opportunity to do so directly or through an impartial
representative.212 The child’s view has to be taken into consideration by the relevant authorities.
The phrase ‘who is capable of communicating his or her views’ is said to be limiting in that
this ability may be attached to ‘age, level of education and the ability to communicate verbally
or to write’ and may be used to marginalise children who cannot communicate in traditional
ways but have to rely on other means such as body language.213 For children with disabilities,
this provision is restrictive if they are only able to communicate in non-traditional ways such
as sign language.214 The ACRWC also limits the scope of the provision to judicial and
administrative proceedings, thereby overlooking other ‘forums or spaces’ where the
participation of the child may be necessary.215 In addition, while the CRC ties the principle of
child participation to the evolving capacities of the child, the ACRWC is silent on this.
In relation to the participation of children in alternative care measures, the importance of the
right has been stressed as the process involves placing a child outside of his or her family
environment.216 In recognition of this, the CRC Committee requires states to enact legislation
to provide for the right of the child to information regarding his or her placement in alternative
care and opportunities for meaningful participation during all stages of the decision-making
process.217 Hence, it is crucial that children are given the opportunity to participate in all stages
211 CRC Committee, GC No. 9 (2006), para 48. 212 ACRWC, art 4(2). 213 Viljoen F ‘The African Charter on the Rights and Welfare of the Child’ in Boezaart T (ed) Child Law in South Africa (2009) 338; Gose (2002) 125; Hansungule & Boezaart (2017) 48. 214 Hansungule & Boezaart (2017) 48. 215 Hansungule & Boezaart (2017) 48. 216 Assim (2013) 104. 217 CRC Committee, GC No. 12 (2009), para 97.
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of the alternative care placement process, including in decisions regarding the form of
alternative care to be provided as well as in matters affecting the child post-placement in
alternative care.218 The Committee further requires states to establish mechanisms to ensure
that ‘children in all forms of alternative care, including in institutions, are able to express their
views and that those views be given due weight in matters of their placement, the regulations
of care in foster families or homes and their daily lives’.219 To obtain the informed consent of
the child in question, it is necessary to ensure that the child has been given all the necessary
information regarding the effect of the form of alternative care selected.220
Additionally, the Committee requires that children’s views be taken into account in the
development of ‘child-friendly care services’.221 States are required, furthermore, to establish
an independent mechanism, such as a children’s ombudsperson, to monitor compliance with
criteria and standards in respect of the provision of alternative care.222 The Committee requires
this institution to be empowered with a mandate to have unrestricted access to residential care
settings to be able to directly solicit the views of children placed in such settings and to evaluate
whether the obligation under article 12 is being adhered to by the institution.223
The second clause of article 12 requires that the child be given opportunities to express his or
her views freely and have those views be given due weight ‘in any judicial and administrative
proceedings affecting the child’.224 The participation of children in legal proceedings can be
realised through direct participation or indirectly through a representative or other measure of
218 Lim (2010) 146. 219 CRC Committee, GC No. 12 (2009), para 97. 220 CRC Committee, GC No. 12 (2009), para 56. 221 CRC Committee, GC No. 12 (2009), para 97. 222 CRC Committee, GC No. 12 (2009), para 97; Lansdown (2011) 88. 223 This is significant in protecting the rights of children with disabilities in alternative care, particularly those that are placed in institutions, as they face a higher risk of violence and abuse than other children in alternative care and those living with their families. CRC Committee, GC No. 12 (2009), para 97. Lansdown (2011) 86. 224 CRC, art 12(2).
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support.225 The Committee notes that the scope of this provision is not restricted and applies
across all judicial proceedings affecting the child;226 hence, it includes legal proceedings
regarding the alternative care of children with disabilities. In this regard, states are required to
ensure that the views of children are sought and given due weight in decisions about their
placement, development of care plans and family and parental visits.227
Along the same lines, the UN Guidelines require that decision-making in the best interests of
the child to determine the most appropriate alternative care for the child, to involve consultation
with the child at all stages and to have legal representation in any legal proceedings.228 To this
end, the Guidelines require states to take every effort to provide sufficient resources and
training for those involved in the decision-making process of determining the best form of
care.229
In view of the various obligations relating to the right of children with disabilities to participate
in the applicable standards, it can be inferred that both the CRC and ACRWC provide for the
views of the child to be heard and given due weight.230 These two provisions, however, contain
restrictive phrases such as ‘capable of communicating his/her views’ and ‘capable of forming
his or her own views’ that could be used to undermine the right. As will be discussed below,
the CRPD provides better protection in this regard as it does not attach such restriction to the
right.231
225 Article 12 of the CRC read with art 12(3) of the CRPD. 226 CRC Committee, GC No. 12 (2009) para 32. 227 See CRC Committee, GC No. 12 (2009) para 54. 228 UN Guidelines, para 57. 229 UN Guidelines, para 57. 230 Article 12 of the CRC and art 4(2) of the ACRWC. 231 Article 7(3) of the CRPD.
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3.6 An analysis of the CRC, ACRWC and CRPD
3.6.1 Children with disabilities under the CRC
In addition to its being the first globally binding instrument to unequivocally prohibit
discrimination on the basis of disability,232 the CRC is also the first to dedicate a provision to
the rights of children with disabilities, which it does so in article 23.233 However, it has been
emphasised that assigning a particular provision to the rights of children with disabilities should
not be taken to mean that the rights of these children are confined to that provision.234 Rather,
the entitlements afforded to children with disabilities in article 23 should be recognised without
disregarding the general principles or other provisions of the CRC.235
Article 23(1) requires State Parties to recognise that children with disabilities ‘should enjoy a
full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the
child's active participation in the community’.236 The formulation of this provision has been
criticised by commentators as failing to provide children with disabilities with ‘effective equal
232 Byrne (2012) 423. 233 Combrinck (2008) 306. Article 23 of the CRC reads: ‘1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child. 3. Recognising the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.’ 234 CRC Committee, GC No. 9 (2006), para 5. 235 UNICEF Innocenti Research Centre (2007) 7. 236 CRC, art 23(1).
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protection of human rights’ on an equal basis with children without disabilities.237 The manner
in which the first paragraph of the provision is phrased neither grants rights to children with
disabilities, nor imposes obligation on states to take measures to realise the right.238 In addition,
in terms of article 23(2), states are obliged to recognise children with disabilities’ right to
‘special care’, but measures to ensure that children with disabilities receive such care are not
specified.239
Article 23(2) further requires states to extend assistance to children with disabilities provided
they are eligible and apply for such services. This provision has been criticised for failing to
bestow an unqualified right of assistance on children with disabilities, as it is made subject to
conditions such as eligibility, application for such services, and the availability of resources.240
In the same vein, article 23(3) has been criticised on the ground that it does not bestow an
explicit right to have access to or benefit from the services set forth in the clause.241
Furthermore, this clause requires the provision of services ‘in a manner conducive to the child's
achieving the fullest possible social integration’, which has been said to imply that, for some
children with disabilities, achieving full integration might not be feasible.242
Given the limitations of article 23, it has been argued that the provision reflects the medical
approach in which children with disabilities have been viewed historically as ‘objects of charity
and passive recipients of welfare’ rather than rights-holders.243 The provision to a large extent
237 Skarstad K & Stein MA ‘Mainstreaming disability in the United Nations treaty bodies’ (2018) 17 Journal of Human Rights 4. 238 Kilkelly (2002) 192. 239 Kilkelly (2002) 192. 240 Kilkelly (2002) 192–93; Combrinck (2008) 307; Skarstad & Stein (2018) 4. 241 Kilkelly (2002) 193. 242 Rosenthal E ‘The right of all children to grow up in with a family under international law: Implications for placement in orphanages, residential care and group homes’ (2019) 25 Buffalo Human Rights Law Review (emphasis added). 243 Sabatello (2013) 468–69; Skarstad & Stein (2018) 4; Lord JE ‘Child rights trending: Accommodating children with disabilities in the global human rights framework and US foreign policy’ (2017) 16 Whittier Journal of Child and Family Advocacy 3 and 6.
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views children with disabilities through the lens of the medical model of disability in which
they are thought of as subjects of protection requiring ‘special care’, ‘treatment’ and
‘rehabilitation’.244 It can easily be misconstrued as characterising children with disabilities as
needing primarily ‘protective measures rather than [being] active holders of rights’.245 The
CRC’s medical-based approach in providing for children with disabilities may result in failure
to ensure their rights in accordance with the human rights model of disability.246
This poses a challenge to the implementation of the rights of children with disabilities, as states
are disinclined to implement ‘welfare rights’, which are often perceived as resource-intensive
and imposing an excessive burden on states.247 This is evident as the provision makes the right
to assistance subject to available resources.248 Article 23 thus does not reflect the CRC’s overall
recognition of children as active agents and bearers of rights, suggesting that the welfare
approach is the ‘only – or at least the paramount – aspect that ought to be addressed’ when it
comes to children with disabilities.249 Because of the limitations of the disability-specific
provision, it has been contended that the other provisions of the CRC present a stronger
potential to protect the rights of children with disabilities by virtue of the non-discrimination
obligation in article 2 of the Convention.250
The CRC Committee identifies article 23(1) as crucial to the protection of children with
disabilities.251 It states furthermore that children with disabilities should be included in society
and that states should take measures to realise this goal.252 On this basis, one could argue that
244 Byrne (2012) 424. 245 Byrne (2012) 424. 246 Nonetheless, the counter argument to this assertion could be that, the reference to ‘special measures’ implies an obligation to take ‘specific measures’ that are geared towards achieving their substantive equality on an equal basis with children without disabilities. Chilemba (2014) 45. 247 Sabatello (2013) 468–69 248 CRC, art 23(2). Sabatello (2013) 468–69 249 Sabatello (2013) 468–69. 250 Kilkelly (2002) 193. 251 CRC Committee, GC No. 9 (2006), para 11. 252 CRC Committee, GC No. 9 (2006), para 11.
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when children with disabilities are deprived of their family environment, states should ensure
that alternative-care responses for these children facilitate their inclusion in society. It has been
argued that article 23 upholds the idea that a child’s right to a family environment is connected
to the child’s participation in the community.253
In the context of alternative care, the medical model of disability has been used to justify the
institutionalisation of persons with disabilities.254 It is also known to reinforce the practice of
keeping children with disabilities in separate facilities, including in special schools and other
systems of segregation, under the guise of providing services considered ‘special’ to their
needs.255 Thus, in the context of alternative care, the language of the CRC and its medicalised
approach to disability could be misinterpreted as a validation of the institutionalisation of
children with disabilities.
The CRC Committee’s General Comment No. 9 is for the most part in line with the CRPD, and
purports to draw upon the social model of disability.256 However, it also seems to perpetuate
the medical-based approach to disability by making reference to the ‘stress and difficulties’
that families of children with disabilities have to bear,257 thus implying that children with
disabilities are burdens.258
3.6.2 Children with disabilities under the ACRWC
The ACRWC affords children with disabilities much the same rights as the CRC. While its
article 13 addresses children with disabilities under the degrading term, ‘handicapped
253 Weisz V & Tomkins AJ ‘The right to a family environment for children with disabilities’ (1996) 51 American Psychologist 1243. 254 Bediako KA ‘Relevance of disability models from the perspective of a developing country: An analysis’ (2013) 3(11) Developing Country Studies 123. 255 Schulze (2010) 16. 256 Murungi (2013) 75; CRC Committee, GC No. 9 (2006), para 7. 257 CRC Committee, GC No. 9 (2006), para 27. 258 Byrne (2012) 425.
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children’,259 it has been noted that, at the time of drafting, the term ‘handicapped’ was not
considered derogatory to persons with disabilities.260 It is clear that the intention of the
ACRWC was not to undermine the human dignity of children with disabilities.261 Nevertheless,
article 13 may be interpreted as legitimising the segregation of children with disabilities, which
usually entails their institutionalisation, as it identifies, similar to the article 23 of the CRC,
distinct needs and measures to consider in relation to children with disabilities, rather than
adopting a rights-based approach.262 The provision of assistance to children with disabilities is
also made subject to available resources, and the ACRWC fails to include education, health
care and rehabilitation facilities as among the services they are entitled to.263 On a positive
note, this provision is said to offer children with disabilities a higher level of protection than
article 23 of the CRC in that it is not linked to the parents or caregivers’ situation.264 Article 13
of the ACRWC is also specific about measures as regards children with disabilities, unlike the
CRC, which (as discussed above) is broad and vague about the rights of children with
disabilities.265
3.6.3 Children with disabilities under the CRPD
The CRPD devotes its article 7 to the rights of children with disabilities. The first paragraph
recalls the non-discrimination principle of article 2 of CRC, which prohibits discrimination on
the basis of a disability. Conversely, article 7(1) ‘differs in its positive formulation of an “equal
basis” provision’.266 The phrase ‘on an equal basis with others’ links the non-discrimination
259 ACRWC, art 13. 260 Wakefield L & Assim UM ‘Dawn of a new decade? The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child’ (2001) 2 African Human Rights Law Journal 717. 261 Wakefield & Assim (2011) 717. 262 Article 13(1) of the ACRWC provides: ‘Every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his physical and moral needs and under conditions which ensure his dignity, promote his self- reliance and active participation in the community.’ 263 Gose (2002) 90–1. 264 Gose (2002) 90. 265 Gose (2002) 89. 266 Willems (2012) 3.
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principle to the rights of children with disabilities.267 Thus, for states to fulfil their obligation
under article 7(1), a precondition is ensuring the explicit prohibition of discrimination against
children with disabilities in domestic laws and policies.268
Hence, from the outset, it can be observed that the CRPD provides children with disabilities
with a high level of protection by making it an explicit requirement that they are to enjoy all
rights in the Convention ‘equally with others’. Neither the CRC nor ACRWC explicitly require
that children with disabilities be treated or considered equally with other children. Moreover,
the CRPD does not link the needs of children with disabilities with that of their parents, as is
the case in the CRC. Article 7 of the CRPD also diverges from the medicalised approach
employed in article 23 of the CRC by recognising the link between impairment and social
barriers.269
Article 7(2) requires that the best interests of the child must be a primary consideration in all
actions concerning children with disabilities, reflecting the position of the CRC.270 This
provision, however, does not impose any higher obligation on State Parties than under the
CRC.271 In its General Comment No.1 on the right of persons with disabilities to equal
recognition before the law, the CRPD Committee requires states to replace the best interests
standard with ‘the best interpretation of will and preferences’ standard for decision-making.272
In making the link between article 7 and 12 of the CRPD, the Committee first reiterates that
the best interests standard in article 7(2) and states that it should be a primary consideration in
267 CRPD Committee, General Comment No. 6 ‘Equality and non-discrimination’ (2018) (hereafter CRPD Committee, GC No. 6 (2018) para 7. 268 Broderick A ‘Article 7 [Children with disabilities]’ in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 201. 269 Byrne (2012) 428; Broderick (2017) 200. 270 CRC, art 3(1). 271 McCallum & Martin (2013) 23. 272 In respect of the support offered to persons with disabilities in exercising his or her legal capacity, the CRPD Committee stresses that in circumstances where best efforts to ascertain the person’s ‘will and preferences’ fail, that the ‘best interpretation of will and preferences’ should replace the ‘best interests’ standard. CRPD Committee, GC No. 1 (2014), para 21.
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all actions concerning children with disabilities. However, the Committee later endorses the
‘will and preferences’ standard by stating that compliance with article 12 entails states to
‘examine their laws to ensure that the will and preferences of children with disabilities are
respected on an equal basis with other children’.273 Hence, the CRPD Committee seems to have
‘conflated’ both paradigms in respect of children with disabilities.274 Some scholars have
welcomed the replacement of ‘best interests’ with ‘the best interpretation of will and
preferences’ standard for adults by contending that the former follows a ‘paternalistic’
approach, leaving room for substitute decision-making275 and hence failing to confer persons
with disabilities the right to equal recognition before the law.276 In the same vein, another
scholar argues that
the application of the best interests principle brings with it a significant risk of paternalism. It has been underpinned with welfarist discourse in relation to childhood generally. In the disability context, the application of the concept of ‘best interests’ still leads to the danger of over-reliance on medical opinion and the adoption of an approach that is not rights-based.277
Others have cautioned against making comparisons between the two standards, pointing out
that despite the challenges posed by the application and determination of the best interests
standard, ruling it out or implementing an ‘either/or’ approach overlooks ‘the level of
complexity that exists on both sides of the issue’. 278 This is particularly true in the absence of
any guidance on the content of the ‘best interpretation of will and preferences’ standard.279 This
would indicate that the Committee’s interpretation, while it is narrated in the context of article
12, may raise questions on whether it may influence its future interpretation of other provisions,
273 CRPD Committee, General Comment No. 1. ‘Article 12: Equal recognition before the law’ (2014) (hereafter CRPD Committee, GC No.1 (2014)), para 36. 274 Sandland (2017) 99. 275 Keys M Article 12 [Equal recognition before the law] in Fina VD, Cera R & Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 267. 276 Keys (2017) 267. 277 Broderick (2017) 208. 278 Skowron P ‘Giving substance to “the best interpretation of will and preferences”(2019) 62 International Journal of Law and Psychiatry 125. 279 Skowron (2019) 125.
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including article 7(2) of the CRPD. This may be problematic as the Committee has not yet
provided guidance on what is meant by ‘will and preferences’.
Furthermore, article 7(3) requires states to ensure that they accord due weight to the views of
children with disabilities in accordance with their age and maturity and on an equal basis with
other children.280 This right is of particular importance to children with disabilities, whose
interests and voices often go unnoticed and undervalued.281 It is notable that unlike the CRC,
the CRPD does not limit a child’s right to participate with a qualifying phrase, i.e. ‘a child who
is capable of forming his or her own views’,282 and gives weight to the right by requiring the
principle of respect for the evolving capacities to inform the interpretation of rights in the
Convention, including article 7(3).283 Moreover, with regard to facilitating the participation of
children with disabilities, the CRPD provides greater protection than article 12 of the CRC by
placing an obligation on states to provide assistance that is disability- and age-appropriate.284
In doing so, the CRPD acknowledges the multiple forms of discrimination that children with
disabilities face on the grounds both of childhood and disability.285 This disability-appropriate
assistance can include the use of assistive devices, communication aids and interpreters.286 In
addition, it is noteworthy that the provision does not make participation weighed on the degree
of the child’s disability but on his or her age and maturity.287 This means that all children with
disabilities must be enabled to participate actively in all matters concerning them by providing
them with appropriate assistance, with particular attention paid to those children with severe
disabilities.288 To enhance the direct and indirect participation of children with disabilities in
280 CRPD, art 7(3). 281 Children’s Rights International Network (CRIN) ‘The UN Committee on the Rights of Persons with Disabilities and children’s right: An analysis’ (2015) 12; Broderick (2017) 208–9. 282 CRC, art 12(1); Byrne (2012) 430. 283 Byrne (2012) 430. 284 CRPRD, art 7(3). 285 Byrne (2012) 429. 286 Broderick (2017) 208. 287 Broderick (2017) 208. 288 Broderick (2017) 208.
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court proceedings, the CRPD requires that they be provided with ‘procedural and age-
appropriate accommodations’ and that those working in the administration of justice undergo
disability-related training.289
The rights of children with disabilities provided for under article 7 are to be applied in relation
to the other rights and obligations under the CRPD.290 Thus, when states, in terms of article
23(5), provide alternative care to children with disabilities who are unable to live with their
families, they are under an obligation to consider the rights of children with disabilities set out
in article 7. Accordingly, states have to provide alternative care to children with disabilities
equally with other children and with regard to their best interests as a primary consideration.
This entails that children with disabilities are not discriminated against on the basis of disability
in the provision of alternative care or the forms of alternative care provided. The application of
article 7(3) in the context of alternative care would further entail that the views of children with
disabilities to be sought and given due consideration in decisions regarding their placement in
alternative care in accordance with their age and maturity and on an equal basis with other
children. In addition, children with disabilities should be provided with the assistance they may
require to facilitate their effective participation in matters relating to their placement in
alternative care.
In addition, the right of children with disabilities to participate is linked to article 3(h) of the
CRPD which concerns respect for their evolving capacities.291 Article 3(h) of the CRPD draws
upon article 5 and 23(1) of the CRC,292 which requires states to ‘ensure dignity, promote self-
289 See CRPD, art 13(1) and (2). 290 Broderick (2017) 198. 291 Broderick (2017) 208. 292 Byrne (2012) 427. Article 5 of the CRC provides: ‘States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention’.
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reliance and facilitate the child’s active participation in the community’.293 However, the
CRPD elevates the protection of children with disabilities to a higher level than the CRC by
not restricting the evolving capacities of children with disabilities in the context of parental
direction and guidance, but instead requiring the principle to guide the interpretation of all
rights in the Convention.294 Thus respect for the evolving capacities of children with disabilities
in the CRPD has a cross-cutting application throughout the substantive rights and obligations
relating to children with disabilities in the Convention and informs the interpretation of those
rights, including the alternative care of children with disabilities.
It is noteworthy that the principle of respect for the evolving capacities of the child does not
refer to respect for the rights of children with disabilities in the CRPD, as their right should be
respected regardless of capacity.295 Rather it concerns itself with where ‘responsibility for the
exercise of the rights lies’.296 It reaffirms the fact that just like children without disabilities,
children with disabilities also have inherent capacity as well as the ability to gradually develop
that capacity.297 The principle has utmost relevance to children with disabilities who commonly
face many barriers to achieve recognition of their capacity to exercise their rights and are
considered as ‘incapable of demonstrating any meaningful capacity or competence’ to make
decisions and participate in society. 298 This often results in undue or excessive restriction of a
child's autonomy by parents or others, allegedly in the interest of the child’s welfare and
undermining their overall independence.299 Hence, this provision lays a strong foundation to
intensify the participation of children with disabilities in decision-making processes that affect
293 Fina (2017) 134. 294 Byrne (2012) 427. 295 Lansdown G The Evolving Capacities of the Child (2005) ix. 296 Lansdown (2005) ix 297 Broderick (2017) 198. 298 Byrne (2012) 427. 299 Broderick (2017) 208–09.
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them.300 In the context of alternative care, this principle would entail that due regard is given
to developing capacities of children with disabilities in the decision-making process regarding
measures related to their care, including the determination of the most suitable form of
alternative care.
Moreover, the principle of respect for the evolving capacities of children with disabilities is
significant as there is a general presumption that children, particularly for children with
disabilities, do not have legal capacity, as they are generally regarded as incompetent of making
decisions.301 This misconception has an adverse effect on children with disabilities as it restricts
their capacity to gradually become independent members of society.302 In this instance, it is
important to balance the responsibility of parents to protect their children with disabilities in
situations where they do not yet possess the legal capacity to make decisions independently
with respect for their evolving capacities to exercise their rights.303 Moreover, article 12 affords
an added layer of protection to children with disabilities as it provides for equal legal capacity
and recognition before the law for all persons, regardless of age,304 and requires states to take
the necessary measures to ensure that children with disabilities have access to the support they
may need in order to exercise this right.305 In its General Comment No. 1, the CRPD Committee
insists that the disability of a person regardless of the severity or type of impairment cannot be
used to justify the denial of legal capacity and calls for states to abolish regimes that allow
substitute decision-making to ensure that persons with disabilities have legal capacity on an
equal basis with others.306 Although article 12 has attracted a debate on whether the CRPD
300 Broderick (2017) 210–11. 301 Broderick (2017) 208–09. 302 Broderick (2017) 208–09. 303 Broderick (2017) 208–09. 304 CRPD Committee, General Comment No. 1. ‘Article 12: Equal recognition before the law’ (2014) (hereafter CRPD Committee, GC No.1 (2014) para 36. 305 CRPD, art 12(3) and (4). 306 CRPD Committee, GC No. 1 (2014), paras 9 and 28.
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allows substitute decision-making, the Committee has made it clear that the ‘human rights-
based model of disability implies a shift from the substitute decision-making paradigm to one
that is based on supported decision- making’.307 The total prohibition of substituted decision-
making arguably has implications for children with disabilities, including the elevation of
respect for their evolving capacities to exercise their own rights. It also has the potential to
strengthen efforts to provide disability- and age-appropriate support to children with
disabilities in order to enable them to participate in the decision-making process in matters
regarding their placement in alternative care regardless of the nature or severity of their
impairment.
3.7 The right to alternative care: Analysis of the CRC, ACRWC and CRPD
Article 20 of the CRC, 25 of the ACRWC and 23(5) of the CRPD are the principal provisions
that define and guide the discourse on children with disabilities deprived of a family
environment. Article 20 of the CRC and 25 of the ACRWC are similar in formulation and thus
discussed jointly.308 In view of the various ways in which children end up being deprived of
their family environment and the diverse forms that ‘alternative care’ for such children can
take, article 20 is a ‘particularly far-reaching obligation for States’.309 The provisions governing
307 CRPD Committee, GC No. 1. (2014), para 3. 308 Article 20 of the CRC provides: ‘1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.’ Article 25 of the ACRWC provides: ‘1. Any child who is permanently or temporarily deprived of his family environment for any reason shall be entitled to special protection and assistance; 2. State Parties to the present Charter: (a) shall ensure that a child who is parentless, or who is temporarily or permanently deprived of his or her family environment, or who in his or her best interest cannot be brought up or allowed to remain in that environment shall be provided with alternative family care, which could include, among others, foster placement, or placement in suitable institutions for the care of children; (b) shall take all necessary measures to trace and re-unite children with parents or relatives where separation is caused by internal and external displacement arising from armed conflicts or natural disasters. 3. When considering alternative family care of the child and the best interests of the child, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child ethnic, religious or linguistic background.’ 309 Cantwell & Holzscheiter (2008) 4.
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the alternative care of children with disabilities deprived of their family environment contain
concepts that need to be unpacked so as to elucidate the respective state’s obligations. Thus,
the following sections analyse the key elements of articles 20 of the CRC and 25 of the
ACRWC.
3.7.1 Children deprived of their family environment
Under the CRC, article 20 applies to children, including children with disabilities, who are
‘temporarily or permanently deprived of their family environment’ or where ‘in their own best
interest cannot be allowed to remain in their family environment’.310 The phrase ‘or in whose
own best interests cannot be allowed to remain in that environment’ under article 20 should be
interpreted in the light of article 9, which allows for the removal of a child from his or her
parents in cases where abuse or neglect of the child by the parents is involved.311 It has been
noted that although term ‘deprived’ connotes the removal of the child through the intervention
of a third party, the intention of the drafters appears to have been that the provision is applicable
to ‘any situation where a child is bereft of parental care, for whatever reason’.312 Thus, in
addition to state actions such as deportation and imprisonment, the use of the word ‘deprived’
in articles 20(1) of the CRC and 25(2)(a) of the ACRWC encompasses other scenarios, such
as poverty and illness, that could deprive a child of a meaningful family environment.313 The
scope of term ‘children deprived of their family environment’ is hence broad and embraces
various categories of children who require alternative care, including orphans due to HIV/AIDS
and other causes of death314 as well children who are victims of abandonment and
displacement.315
310 CRC, art 20(1). 311 CRC, art 9(1). Cantwell & Holzscheiter (2008) 38. 312 Cantwell & Holzscheiter (2008) 38. 313 Mezmur (2009) 166. 314 Assim (2013) 108. 315 Hodgkin & Newell (2007) 277; Mezmur (2009) 166.
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Along the same lines, it is noteworthy that the CPRD clearly stipulates that the disability of
either parent or child is not a sufficient reason for removing the child from his or her family.316
This provision is only qualified with a condition that such separation is deemed to be in the
best interests of the child by competent authorities and that it is subject to judicial review and
determined in accordance with applicable law and procedures.317 The provision’s explicit
statement that no child should be separated from his or her parent on the basis of a disability
of the child or either of the parents is important as children with disabilities are often removed
from their parents and placed in institutional care.
In addition, the ACRWC in its article 25 includes ‘a child who is parentless’ in the category of
children to whom the state has the obligation to provide alternative care, thereby suggesting a
broader scope of children that are entitled to the provision of alternative care.318 The word
‘parentless’ has led some to argue that the provision is applicable to children who are deprived
of parental care irrespective of the presence of extended families.319 The mere absence of
parental care poses multiple risks to children, such as abuse and maltreatment at the hands of
their caregivers.320 Thus, the ACRWC’s approach in placing an obligation on the state to
provide special protection and assistance to children who are deprived of parental care and not
necessarily receiving care from extended families affords an additional protection over and
above what the CRC provides.321
316 CRPD, art 23(4). 317 CRPD, art 23(4). 318 ACRWC, art 25(2)(a). 319 Lim (2010) 128–29. 320 Lim (2010) 129. 321 Lim (2010)104.
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3.7.2 Special protection and assistance
Both the CRC and the ACRWC require the provision special protection and assistance to
children deprived of their family environment by the state.322 Thus the duty to provide special
protection and assistance requires direct state action, however it may be subject to available
resources.323 However, articles 20(1) of the CRC and 25(1) of the ACRWC do not specify what
State Parties need to do to implement the right, thereby leaving what ‘special protection and
assistance’ entails in the context of alternative care open to interpretation. It has been argued
that the provision of alternative care could be considered as one form of protection and
assistance to be provided by the state.324 The CRC Committee seems to follow the same
approach, as it requires states to provide special protection and assistance to unaccompanied
children in the form of alternative care.325 However, the reporting guidelines suggests that the
provision of ‘alternative care’ and ‘special protection and assistance’ are not one and the same,
as they set out different measures to be adopted to ensure the implementation of those
obligations.326 Whereas there is no elaboration in the CRC and the ACWRC about what is
meant by ‘special protection and assistance’, this duty has been linked to the obligation to
periodic review of placement in alternative care, which is provided in article 25 of the CRC (as
discussed below).327
The provision of special protection and assistance is not unique to the CRC and ACRWC. It is
often used in human rights law to offset the special vulnerability of certain groups particularly
322 CRC, art 20(1); ACRWC, art 25(1). 323 Vandenhole W, Türkelli GE & Lembrechts S Children’s Rights: A Commentary on the Rights of the Child and its Protocols (2019) 225. 324 Phillips (2011) 46. 325 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families & CRC Committee ‘Joint General Comment No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 of the CRC Committee on State Obligations Regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return’ (2017) para 11. 326 CRC Committee, General guidelines for periodic reports: 20/11/96 (1996) (UN Doc CRC/C/58). 327 See s 3(8) of this chapter for further discussions on the obligation of states to periodically review alternative care placements. Lim (2010) 136.
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vulnerable as a result of their circumstances, status or both, such as children with disabilities,
and thus to enable the fulfilment of their rights.328 In this context, it can be argued that ‘special
protection and assistance’ entails taking into account the multiple vulnerabilities of children
with disabilities329 – both on the grounds of their age and disability when determining the form
of alternative care as well as in relation to the type of care provided to the child post-placement.
It has also been emphasised that the provision of special protection and assistance should
follow an individualistic approach that embraces the needs of the child in question and the
nature of alternative care selected.330 For example, a child with a disability in institutional care
might need different measures of ‘special protection and assistance’ than a child with a
disability in foster care. For children with disabilities in institutional care, the provision of
‘special protection and assistance’ will thus entail identifying the specific vulnerabilities they
face in any given setting and providing support and protection.
Article 20 requires that the state provide special protection and assistance,331 with the
obligation to ‘provide’ being stronger than the obligation to ‘ensure’, as indicated above. Thus,
the state bears the ‘direct, active and absolute responsibility’ to afford special protection and
assistance to the child, as opposed to overseeing the necessary action.332 As a rule, this denotes
that the state should be the direct service provider333 and might include alternative care in view
of the claim that it is seen as one form of ‘special protection and assistance’.334 At any event,
the state remains the primary duty-bearer to determine, make available and oversee ‘the
328 Cantwell & Holzscheiter (2008) 49–50. 329 Lim (2010) 132–36. 330 Lim (2010) 136. 331 Emphasis added. CRC, art 20(1). 332 Cantwell & Holzscheiter (2008) 50. 333 Cantwell & Holzscheiter (2008) 50. 334 Cantwell & Holzscheiter (2008) 50.
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effective use of all necessary resources for guaranteeing that the required services are
provided’, even in cases where delivery of this is delegated to non-state actors.335
The ACRWC does not make it clear who is responsible for the provision of special protection
and assistance.336 This is mainly because it leaves out the term ‘provided by the State’, unlike
the CRC.337 This omission has been interpreted to mean that the obligation to provide special
protection and assistance is obligatory on the state and society in general.338
3.7.3 Alternative care under the CRC, ACRWC and UN Guidelines
Articles 20(2) of the CRC and 25(2)(a) of the ACRWC require states to provide alternative
care to children who are temporarily or permanently deprived of their family environment or
cannot be allowed to remain in that environment. It is to be noted that State Parties’ obligation
to provide alternative care in both provisions is a strong one. The combination of the words
‘shall’ and ‘ensure’ in articles 20(2) of the CRC and 25(2)(a) of the ACRWC creates a high
degree of obligation on State Parties to provide alternative care to children deprived of their
families.339 Furthermore, the word ‘ensure’, as opposed to ‘provide’, implies that the state does
not necessarily have to be the direct service provider but has to take ‘active steps to satisfy
itself that each child requiring alternative care receives it’.340 However, even though it is
allowed that the state delegate the provision of alternative care services to private sectors, the
state remains in charge of ensuring the provision of this care in an effective manner and in
accordance with the standards set forth for the public and private sectors.341
335 Cantwell & Holzscheiter (2008) 50. 336 Gose (2002) 103. 337 See CRC, art 20(1) in comparison with art 25(1); Gose (2002) 103. 338 Gose (2002) 103. 339 Cohen C & Davidson H Children’s Rights in America: The U.N. Convention on the Rights of the Child Compared with United States Law (1990) 38 (discussing how the combination of the words ‘shall’ and ‘ensure’ impose a higher level of obligation). 340 Cantwell & Holzscheiter (2008) 51. 341 Cantwell & Holzscheiter (2008) 51.
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Furthermore, states are required to provide alternative in accordance with their national laws.342
The Travaux Preparatoires reveal that the insertion of the phrase ‘in accordance with their
national laws’ and the non-exhaustive nature of the list of alternative care forms provided in
article 20 are due to an acknowledgement that different countries employ different forms
alternative care for children who cannot be cared for by their own parents. 343 Thus, it indicates
an effort to avoid imposing on states fixed forms of alternative care that may not be applicable
in their respective legal systems, such as adoption.344 Thus, the phrase ‘in accordance with their
national laws’ is not meant to limit the State Party’s obligation but to give states discretion as
to the type of alternative care to be provided.345
While determining the most suitable alternative care for children, both the CRC and the
ACRWC require states to give fair consideration to the ‘desirability of continuity in a child’s
upbringing and to the child’s ethnic, religious, cultural and linguistic background’.346 In
relation to the phrase ‘continuity in a child’s upbringing’, it is not clear whether the intention
of the drafters was to avoid multiple placements or to maintain the child’s socio-cultural and
educational background by placing him or her in a similar environment.347 However, there are
arguments in support of both positions. It has been argued that this provision aims to uphold
the desirability of maintaining contact with the nuclear and extended family, as well as the
wider community, and of placing children in foster care or adoptive families from the same
342 CRC, art 20(2). 343 Detrick S A Commentary on the United Nations Convention on the Rights of the Child (1999) 336. 344 Detrick (1999) 336. 345 Detrick (1999) 336. 346 See the CRC, art 20(3); ACRWC, art 25(3). This obligation is linked to various provisions of the CRC, ranging from the child’s right to know and be cared for by parents to the preservation of the child’s identity and the right of children of ‘ethnic, religious or linguistic minorities’ to enjoy their culture, practice their religion and use their language. Hodgkin & Newell (2007) 288. See CRC, arts 7(1), 8(1) and 30. 347 Vandenhole W ‘Children’s rights from a legal perspective: Children’s rights law’ in Vandenhole W, Desmet E, Reynaert D, et al (eds) Routledge International Handbook of Children’s Rights Studies (2015) 227.
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cultural background348 in order to enable children to form lasting attachments with their
caregivers.349
In the same vein, the UN Guidelines emphasise that the determination of alternative care
options for children should give due regard to the ‘desirability’ of keeping the child close to
his or her familiar surroundings to keep the child’s educational, cultural and social life intact
and to preserve contact and pursue possible reunification with the family.350
Article 25(2)(b) of the ACRWC requires states to take measures to ensure the reunification of
children with parents or relatives in the case of internal or external displacement caused by
armed conflicts or natural disaster.
The CRC provides a list of possible forms of alternative care that is non-exhaustive and
includes foster care, adoption, kafalah of Islamic law or, ‘if necessary, placement in suitable
institutions for the care of children’.351 This provision is unique in the sense that it lists adoption
among the potential alternative care options that should be made available to children deprived
of their family environment. According to the UN Guidelines, the process leading to adoption
is considered as one form alternative care.352 Nonetheless once adoption is formalised, it is no
longer alternative care and falls under the scope of parental care.353 Cantwell and Holzscheiter
argue in support of this approach, emphasising that adoption is a ‘potential outcome to be
sought for a child in alternative care than a form of such care per se’.354 They further argue that
the distinction between adoption and other forms of alternative care is evident in the way that
348 Hodgkin & Newell (2007) 289. 349 Hodgkin & Newell (2007) 289. 350 UN Guidelines, para 11. 351 CRC, art 20(3). 352 UN Guidelines, para 30(b). 353 UN Guidelines, para 30(b). 354 Cantwell & Holzscheiter (2008) 52.
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alternative care placements are subject to periodic review in accordance with article 25 of the
CRC, whereas adoption is not subject to such review once finalised.355
It should be noted that the ACRWC does not explicitly mention ‘Kafalah of Islamic law’ or
adoption. Moreover, due to the omission of the commonly used alternative care options for
children who are deprived of family environment in Africa such as kinship care, it has been
argued that the options mentioned in the ACRWC ‘do not reflect the African concepts of
alternative care’.356
Article 20 lacks clarity with regard to the hierarchy of alternative care options. The vagueness
of this provision has proven controversial and drawn criticism from some scholars.357 Article
20 sets out the order of enumeration, with family-based alternative care options listed first
(foster placement, kafalah and adoption) and the consideration of institutional care being
followed by the phrase ‘or, if necessary’, implying that institutional care should be treated as a
last resort in the placement of children deprived of family environment in alternative care.358
This phraseology indicates that priority is accorded to family-based alternative care over
institutions.359 However, the CRC has been criticised for failing to explicitly assert State
Parties’ obligation to ensure the development of family-based care arrangements, which could
play a role in ensuring the availability of such care, particularly in countries where institutional
care is the dominant form of care available for children deprived of their family environment.360
355 Cantwell & Holzscheiter (2008) 52. 356 Gose (2002) 103. 357 Smolin D ‘The two faces of the intercountry adoption: The significance of the Indian adoption scandals’ (2005) 35 Seton Hall Law Review; Dillon S ‘The missing link: A social orphan protocol to the United Nations Convention on the Rights of the Child’ (2008) 1 Human Rights & Globalization Law Review 9. 358 Hodgkin & Newell (2007) 282; Detrick S (1999) 336. 359 Mezmur (2009) 333. 360 Carlson RR ‘A child’s right to a family versus a State’s discretion to institutionalise the child’ (2016) 47 Georgetown Journal of International Law 941.
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The CRC Committee has explicitly underscored the exceptional and subsidiary nature of
measures that imply the institutionalisation of children is only considered appropriate once
other family-based alternative care options are exhausted.361 The Committee strongly advises
states not to place young children in institutions.362 In this regard, it has been argued that it may
be crucial to put laws in place that prescribe the minimum age for the institutionalisation of
children.363 In its General Comment No. 9, the CRC Committee acknowledges a large number
of children with disabilities are in institutional care as they are routinely placed in such
institutions in countries around the world.364 Moreover, the Committee notes that the services
provided in institutions often do not meet minimum standards, leaving children with disabilities
susceptible to abuse.365 To this end, it recommends that states place children in institutions as
a last resort in balancing necessity and the best interests of the child.366 Although the General
Comment’s consideration of institutions as a measure of ‘last resort’ may have been
progressive at the time it was adopted, it is not cognizant of the higher standard upheld by the
CRPD in relation to the alternative care of children with disabilities, which will be discussed
in the following section.367 It has been contended that in practice ‘the last resort’ standards fails
to provide the same level of protection for children with disabilities as other children.368 This
is so because most countries lack service or support systems for families caring for children
with disabilities, which in turn leads to placement in institutions, ‘family-like’ residences or
361 CRC Committee, General Comment No. 13 ‘The right of the child to freedom from all forms of violence’ (2011), para 47(d)(iii). CRC Committee, Day of General Discussion ‘Children without Parental Care’ (2005), paras 654, 665 and 666. 362 CRC Committee, General Comment No. 7 ‘Implementing child rights in early childhood’ (2005) (hereafter CRC Committee, GC No. 7 (2005) para 36. 363 Mezmur (2009) 340. 364 CRC Committee, GC No. 9 (2006) para 47. 365 CRC Committee, GC No. 9 (2006) para 47. 366 CRC Committee, GC No. 9 (2006) para 47. 367 Rosenthal E ‘The right to live and grow up in a family for all children’ (2018) available at http://bit.ly/2N2E1YN (accessed 23 February 2019) 3. For further discussion on the right to alternative care of children with disabilities under the CRPD, see s 3(7)(4) of this chapter. 368 Rosenthal (2018) 3.
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group homes being the only option available and resulting in children with disabilities having
access only to ‘a second-class system of services’.369
Furthermore, General Comment No. 9 calls for the ‘transforming of existing institutions’ into
‘small residential care facilities’ to facilitate the enjoyment of the rights of children.370
However, the call to ‘transform existing institutions’ could easily be misconstrued to mean that
states should embark on ‘fixing up’ institutions, which may result in diverting much-needed
resources from more positive care options.371 This goes against the CRPD’s Committee’s
position, as residential care, whether small or large, is considered a violation of the right of the
child to live in the community.372 The language of General Comment No. 9 has also been
criticised for failing to clearly stipulate that placement in an institution is meant to be temporary
once a child is placed in such care as a last resort.373 In view of this, as well as the fact that
article 20 of the CRC lists ‘suitable institutions’ among the potential forms of alternative care,
it has been argued that the CRC Committee’s position supports fragmentary institutional
reform rather than a transformation of alternative care systems towards the end of achieving
full community integration.374
However, it becomes clear that the intention of the CRC Committee is not to ‘favour long-term
institutionalization’, given that the General Comment urges states to design programmes for
the deinstitutionalisation of children with disabilities.375 In doing so, it encourages states to
pursue the possibility of either reunifying children with disabilities with their families and
369 Rosenthal (2018) 3; Rosenthal (2019) 109–10. 370 CRC Committee, GC No. 9 (2006), para 47. 371 Rosenthal E ‘A mandate to end placement of children in institutions and orphanages: The duty of Governments and donors to prevent segregation and torture’ in Protecting Children against Torture in Detention: Global Solutions for a Global Problem (2017) 29. 372 CRPD Committee, General Comment No.5 ‘Article 19: Living Independently and being Included in the community’ (2017) (hereafter CRPD Committee, GC No. 5 (2017), paras 16(c) and 37. 373 Rosenthal (2017) 29. 374 Rosenthal (2017) 29. 375 CRC Committee, GC No. 9 (2006), para 49.
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extended families or considering placement in foster care.376 States are required to support
parents and extended families to prepare for the child’s return to their care.377 In circumstances
where foster caregivers are hesitant to take the responsibility for caring for a child with a
disability, the CRC Committee recommends that designated organisations be trained and
supported towards the provision of appropriate care for a child with a disability.378
In this regard, the UN Guidelines acknowledge that effective formal alternative care services
require a range of options for emergency, short- and long-term care to ensure that children are
provided with suitable alternative care to meet their individual needs.379 Residential care is
recognised as complementary to family-based alternative care and among the alternative care
options that should be available.380 However, its use is subject to strict conditions, including
ensuring that such care is used only when it is ‘appropriate, necessary and constructive’ for the
child concerned and considered to be in his or her best interests.381 In other words, there should
be a range of placement options, including family-based and other care settings, to choose from
to find the most suitable alternative care for the individual child.382 This indicates that while
suitable care can be provided in certain residential facilities, it is unlikely to be assured in
‘institutions’.383 In respect of children under the age of three, however, it is clearly stated that
they should not be placed in residential care but in family-based settings, subject to a number
of exceptions.384
In addition, the UN Guidelines, in dealing with support for after-care, require states to prevent
the unnecessary institutionalisation of children with disabilities through the provision of ‘an
376 CRC Committee, GC No. 9 (2006), para 49. 377 CRC Committee, GC No. 9 (2006), para 49. 378 CRC Committee, GC No. 9 (2006), para 46. 379 UN Guidelines, para 54. 380 UN Guidelines, para 23. 381 UN Guidelines, para 21. 382 Cantwell (2014) 34. 383 Cantwell (2014) 34. 384 UN Guidelines, para 22.
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appropriate support system’.385 States are expected to develop a ‘deinstitutionalization strategy,
with precise goals and objectives’ aimed at gradually eliminating ‘large residential care
facilities (institutions)’,386 taking into account the needs of children with disabilities.387
In respect of the ACRWC, its article 25(2)(a) does not include the phrase ‘or, if necessary’ in
its text. It is noteworthy, however, that this provision refers to ‘alternative family care’ (as
opposed to only ‘alternative care’ in the CRC). One could argue that the use of the phrase
‘alternative family care’ means that the state should provide only family-based alternative care
solutions to children deprived of their family environment.388 However, given that institutional
care is listed as one form of alternative care in article 25(2), the argument would seem far-
fetched.389 Nonetheless, it is safe to assume from the wording of the article that priority is given
to ‘family-based’ or ‘family-like’ alternatives for children without parental care over a non-
family alternative such as placement in institutions generally.390
One area of uncertainty in articles 20 of the CRC and 25 of the ACRWC is that reference is
made to ‘suitable institutions’ without elaboration of what these ‘institutions’ entail. In Chapter
2 of this thesis, it was said that while the terms ‘institution’ and ‘residential care’ have been
used interchangeably, the latter is essentially an umbrella term for various non-family-based
alternative care settings, among them institutions.391 In the UN Guidelines, the term
‘institutions’ is used to refer to ‘large residential care facilities’.392 Chapter 2 of this thesis
defined ‘institutions’ to mean ‘residential care settings where children are looked after in any
public or private facility, staffed by salaried carers or volunteers working predetermined
385 UN Guidelines, para 132. 386 UN Guidelines, para 23. 387 Cantwell et al. (2012) 44. 388 Lim (2010) 136. 389 Lim (2010) 136. 390 Cantwell & Holzscheiter (2008) 23. 391 See s 2(6)(3) of Chapter 2 of this thesis for further discussion on the differences between the terms ‘institution’ and ‘residential care’. 392 UN Guidelines, para 23.
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hours/shifts, and based on collective living arrangements, with a large capacity’.393 In previous
chapters, it was noted that their placement in institutions often has dire effects on children in
general and children with disabilities in particular.394 Given this, the CRC’s prescription of
institutions as a potential form of alternative care, along with their ‘suitability’ for any children
at all, has been questioned.395 It has also been contended that the phrase ‘suitable institutions’
gives State Parties the ‘discretion’ to place children in institutions, which in turn is likely to
result in excessive dependence on this form of care even when family-based alternatives are
available.396
Others question the role of ‘intermediary care options’ such as ‘group homes’ if ‘institutions’
refers to only to orphanages, arguing that the ‘suitable institutions’ to which the CRC and
ACRWC refer may be ‘group homes’, given that these types of homes are smaller in size and
located in the community.397 In this regard, it has been argued that although orphanages and
small-group homes fall under the category of ‘institutions’, group homes resembling a family
environment ‘might withstand a better scrutiny under human rights law’.398 It has further been
contended that small-group homes for certain children could be in their best interests in some
circumstances, such as to avoid the separation of siblings who wish to remain together, to
protect the rights of adolescents in difficult circumstances, or for a child who has suffered
multiple unsuccessful foster placements.399
393 See s 2(6)(3) of Chapter 2 of this thesis. This definition was proposed by the NGO Working Group on Children without Parental Care to differentiate institutional care from other forms of residential care. Better Care Network, Family for Every Child, International Social Service, et al Identifying basic characteristics of formal alternative care settings for children Discussion paper, NGO Working Group on Children without Parental Care in Geneva, (a sub-group of the NGO Group for the Convention) (2013) available at http://bit.ly/35vS8fg (accessed 18 March 2017) 15. 394 See s 1(1) of Chapter 1 of this thesis for further discussion of the negative effects of institutional care on children in general and children with disabilities in particular. 395 Rosenthal (2017) 22; see also generally Carlson (2016). 396 Carlson (2016) 940. 397 Mezmur (2009) 331–32. 398 Mezmur (2009) 332. 399 Human Rights Watch Without Dreams: Children in Alternative Care in Japan (2014) 87–8; Hodgkin & Newell (2007) 282.
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Moreover, the recent UN global study on children deprived of liberty maintains that the
majority of children with disabilities placed in institutions are deprived of liberty in that they
‘cannot leave of their own free will’.400 Article 37(b) of the CRC provides that ‘no child shall
be deprived of his or her liberty unlawfully or arbitrarily’, and asserts that ‘the arrest, detention
or imprisonment of a child shall be in compliance with the law and shall be used only as a
measure of last resort and for the shortest appropriate period of time’.401 It was also found that
children with disabilities face ‘unique, disability-specific forms of deprivation of liberty’ as
they are systematically placed in institutions on the grounds of their disability.402 Such practices
are rooted in the medical model of disability.403 Hence, the study adopts the approach of the
CRC by confirming that the placement of children with disabilities in institutions should be a
measure of resort as it results in deprivation of liberty.404 At the same time, in line with CRPD’s
Committee’s position, the study urges states to ‘make every effort to place children in the wider
family, and failing that, in the community in a family-type environment’.405 Thus, the routine
placement of children with disabilities in institutions is in violation not only of the rights to
live in the community, to be free from discrimination, to survival and development, but also
the right not to be deprived of liberty arbitrarily.
3.7.4 Alternative care under the CRPD
The CRPD provides for the alternative care of children in its article 23(5), which declares that
‘States Parties shall, where the immediate family is unable to care for a child with disabilities,
400 UN General Assembly Global Study on Children Deprived of Liberty (2019) (UN Doc A/74/136) (hereafter UNGA Global Study on Children Deprived of Liberty (2019)) available at http://bit.ly/37Aua43 (accessed 30 June 2019) para 62. 401 CRC, art 37(b). The global study adopts the wider definition of deprivation of liberty and places of detention as encompassing all settings where children may be deprived of liberty, including ‘orphanages’ and children’s homes. The study’s definition is in accordance with art 11(b) of the Havana Rules of 1990 and art 4 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 2002. UN General Assembly Global Study on Children Deprived of Liberty (2019) para 18. 402 UNGA Global Study on Children Deprived of Liberty (2019) para 33. 403 UNGA Global Study on Children Deprived of Liberty (2019) para 33. 404 UNGA Global Study on Children Deprived of Liberty (2019) para 20. 405 UNGA Global Study on Children Deprived of Liberty (2019) para 20.
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undertake every effort to provide alternative care within the wider family, and failing that,
within the community in a family setting’. In other words, if children with disabilities do end
up being separated from their parents or deprived of their family environment and in need of
alternative care, the first priority should be to arrange for them to live with extended families.
If this is not possible, the next priority should be looking for alternative care options which are
family-based. Nonetheless, the phrase ‘undertake every effort’ does not appear to impose a
strict obligation on states to ‘ensure’ the provision of alternative care, as is the case in the CRC
and ACRWC. It has been argued that this should not weaken the enforceability of the right and
that the provision imposes immediate measures to be taken to ensure the enforcement of the
right.406
The provision also does not list possible alternative care options for children with disabilities,
unlike its counterparts, articles 20 of the CRC and 25 of the ACRWC. It is evident that the
provision neither prohibits nor prescribes non-family-based alternative care, particularly
institutions as a means to care for children with disabilities who are deprived of their family
environment. It has been emphasised that the reason for the inclusion of this provision in article
23 is to prevent the institutionalisation of children with disabilities in all its forms.407 This
indicates an implicit recognition of the negative consequences that long-term
institutionalisation have for children with disabilities. Hence, article 23(5) of the CRPD is
progressive in that it moves in the direction of deinstitutionalisation of care for children with
disabilities, thereby preventing the devastating effect of institutions on the lives of children
with disabilities. The CRPD clearly enhances the level of protection offered to children with
406 Rosenthal E ‘The right to live and grow up in a family for all children’ (2019) Disability Rights International European Network on Independent Living Validity and TASH, Position Paper available at http://bit.ly/2QO1gH4 (accessed 25 August 2019)152. 407 Fina (2017) 436; Byrne (2012) 432. During the drafting of the CRPD, there was a concern about ending the placement of children with disabilities in institutions, group homes and orphanages. Lord (2017) 17.
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disabilities in the context of alternative care through its efforts to prevent the institutionalisation
of children with disabilities.
Thus, instead of removing children from the community and relying on institutional care as a
common response, it is imperative to shift the focus to training, recruiting and supporting foster
families to allow them to appropriately care for children with disabilities and to developing
other family- and community-based alternatives where children with disabilities can be looked
after as well as fully participate in their own communities.408 Thus, the likelihood of children
with disabilities being cared for in a family-based care is significantly strengthened in the
CRPD in comparison with the CRC and ACRWC, which do not put as much emphasis on
community- and family-based care as the former.409
The CRPD Committee’s jurisprudence supports the protection of children with disabilities in
the context of alternative care by prohibiting their placement in institutions. This is evident in
the Committee’s Concluding Observations on State Parties’ reports, where it has given
extensive attention to the over-representation of children with disabilities in institutional care
and the predominance of the medical-based approach to their care.410 Likewise, for instance in
respect of South Africa, the Committee has expressed concern about the large number of
children with disabilities ‘placed in centres for children or less regulated special service centres,
all of which are based on long-term institutionalisation, often located far from their families
and communities, isolated and lacking properly trained staff’.411 Accordingly, it has
recommended that the government avoid the institutionalisation of children with disabilities by
408 Lansdown G See me, hear me: A guide to using the UN Convention on the Rights of Persons with Disabilities to promote the rights of children (2009) 96. 409 Lansdown (2012) 16. 410 See CRPD Committee Concluding Observations: Guatemala (UN Doc. CRPD/C/GTM/CO/1, 2016) paras 23 and 24; Kenya (UN Doc. CRPD/C/KEN/CO/1, 2015) paras 13–14; Armenia (UN Doc. CRPD/C/ARM/CO/1, 2017) para 11; Serbia (UN Doc. CRPD/C/SRB/CO/1, 2016) para 13; Slovakia (UN Doc. CRPD/C/SVK/CO/1, 2016) para 23; Thailand (UN Doc. CRPD/C/THA/CO/1, 2016) para17. 411 CRPD Committee Concluding Observations: South Africa (UN Doc. CRPD/C/ZAF/CO/1, 2018), para 12(c).
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ensuring that they are provided with support within family and community settings and that
adequate budget is allocated to this end.412 The Committee also recommends regular training
of care workers and parents of children with disabilities and acceleration of awareness-raising
programmes that promote the importance of family and community-based support.413
Furthermore, the Committee expects states reports to identify the measures taken to ensure that
children with disabilities in need of alternative care are not institutionalised and instead
‘provided with alternative care from the wider family, or in a family setting in the wider
community’.414 To this end, it encourages states to promote and support family settings,
including foster care and adoption.415 Moreover, it encourages them to provide community-
based services for children with disabilities and support for their families.416 With a view to
eliminating the institutionalisation of children with disabilities, the Committee urges states to
devise plans for deinstitutionalisation and the engagement of community-based care.417 In the
meantime, it recommends that states provide children with disabilities in institutional care with
adequate early childhood intervention and development services418 and ensure that staff in
institutions are trained properly as well as regularly monitored and evaluated. To this end, states
are encouraged to develop complaint mechanisms accessible to children with disabilities.419
The position of article 23(5) of the CRPD is supported by article 19 of the CRPD, which
provides for the right of persons/children with disabilities to live in the community. The
provision requires that states ‘take effective and appropriate measures to facilitate full
412 CRPD Committee Concluding Observations: South Africa (UN Doc. CRPD/C/ZAF/CO/1, 2018), para 13(d). 413 CRPD Committee Concluding Observations: South Africa (UN Doc. CRPD/C/ZAF/CO/1, 2018), para 13(d). 414 CRPD Committee, Guidelines on periodic reporting to the Committee on the Rights of Persons with Disabilities, including under the simplified reporting procedures, (UN Doc. CRPD/C/3, 2016) para 135. 415 CRPD Committee Concluding Observations: Armenia (UN Doc. CRPD/C/ARM/CO/1, 2017), para 12(a). 416 CRPD Committee Concluding Observations: Bolivia (UN Doc. CRPD/C/BOL/CO/1, 2016), para 18; Moldova (UN Doc. CRPD/C/MDA/CO/1, 2017) para 17. 417 CRPD Committee Concluding Observations: Armenia (UN Doc. CRPD/C/ARM/CO/1, 2017), para 12(a); Slovakia (UN Doc. CRPD/C/SVK/CO/1, 2016) para 24. 418 CRPD Committee Concluding Observations: Serbia (UN Doc. CRPD/C/SRB/CO/1, 2016), para 14. 419 CRPD Committee Concluding Observations: Tunisia (UN Doc. CRPD/C/TUN/CO/, 2011), para 17.
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enjoyment’ by persons with disabilities of the right, including their complete inclusion and
involvement in the community.420 The right to live in the community, which predates the CRPD
and originated in some of the most fundamental human rights,421 is founded on the notion that
all human beings are born equal in dignity and rights and that all life is of equal worth.422 In
respect of children with disabilities, the CRC was the first binding treaty to reflect the right to
community integration of children with disabilities by asserting their right to active
involvement in the community under article 23.423 The right to community living for all
children is echoed in the extensive protections that are afforded to the family ‘so that it can
fully assume its responsibilities within the community’.424
Although the CRC recognises the need for community-based support and services for children
with disabilities, the CRPD articulates the right to live and be included in the community for
children/persons with disabilities comprehensively in international human right instruments
under article 19.425 The provision is unambiguous in asserting that all children/persons with
disabilities have the right to live in the community with choices equal to others.426 This
provision is applicable not only to persons with disabilities but to children with disabilities,
including those who may require extensive support due to the severity of their impairment.427
Arguably, article 19 is also applicable in the context of alternative care of children with
disabilities – in the sense that institutional care is used as a form of alternative care for children
420 CRPD, art 19. 421 Rosenthal E The rights of children with disabilities in Vietnam (2009) 26; Council of Europe Commissioner for Human Rights The right of people with disabilities to live independently and be included in the community (2012) 9. 422 CRPD Committee, GC No. 5 (2017), para 2. 423 CRC, art 23(1). In addition to recognising the right to active participation in the community, the CRC obligates State Parties to provide social services including education, training, health-care services, and rehabilitation services necessary for the enforcement of the right. 424 See the CRC, Preamble. 425 Council of Europe, Commissioner for Human Rights (2012) 21. 426 Rosenthal (2009) 27. 427 Rosenthal (2009) 27.
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with disabilities, one that removes them from public view and deprives them of their right to
live in the community and thus violates their rights. The CRPD Committee supports this
position in its most recent General Comment on article 19, stating that ‘being included in the
community refers to life settings outside residential institutions of all kinds’.428 The Committee
has taken a firm stand in stating that neither small-group homes nor large-scale institutions
promote the rights of children to be included in the community in that ‘there is no substitute
for the need to grow up with a family’.429 The Committee maintains that “family-like”
institutions are still institutions and are no substitute for the need to grow up with a family’,430
and says that ‘[f]or children, the core of the right to live independently and be included in the
community entails a right to grow up in a family’.431 This is significant as, more often than not,
the development of ‘group homes’ has become ‘the default solution that presumes to embody
the principles of the right to live in the community’.432 In this manner, article 19 prohibits the
placement of children with disabilities, including those with mental and psychosocial
disabilities in institutions and affords them the right to live in the community.433
Similarly, the UN Special Rapporteur, in her 2019 report on persons with disabilities, supported
the Committee’s position by reaffirming that any form of placement in residential setting,
whether in a small or large capacity, does not support the rights of children to live in the
428 CRPD Committee, GC No. 5 (2017) para 16(c). Emphasis added. 429 CRPD Committee, GC No. 5 (2017) para 16(c). 430 CRPD Committee, GC No. 5 (2017) para 16(c). 431 CRPD Committee, GC No. 5 (2017) para 37. 432 Council of Europe, Commissioner for Human Rights (2012) 40. 433 CRPD Committee Concluding Observations: El Salvador (UN Doc. CRPD/C/SLV/CO/1, 2013), para 42; (UN Doc. CRPD/C/CHN/CO/1, 2012), paras 31 and 32; Palmisano G ‘Article 19 [Living independently and being included in the community]’ in Fina VD, Cera R, Palmisano G (eds) The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2017) 366. See also Kamundia E ‘Choice, support and inclusion: Implementing article 19 of the CRPD in Kenya’ (2013) African Disability Rights Yearbook 67; Parker C & Clements L ‘The UN Convention on the Rights of Persons with Disabilities: A new right to independent living? (2008) 4 European Human Rights Law Review 512; Kayess R & French P ‘Out of darkness into light: Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 29 as cited in Chilemba (2014) 120.
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community and must be considered as placement in an institution.434 The report notes that
children with disabilities face a high risk of being placed in institutions on the basis of their
disability and that many states allow children with disabilities’ removal from their family
environment and placement in institutions.435 The harmful effects of institutions on children’s
development of children are reiterated, and the report reasserts that any residential institution,
even small residential homes or ‘family-like’ institutions, are inherently damaging to
children.436 The report regards any placement of children in a residential setting outside a
family as placement in institution and as arbitrary deprivation of liberty, which is in violation
of the right to home and family set forth in article 23 of the CRPD.437 This report goes further
than the UN global study by directly opposing article 20 of the CRC which allows for ‘suitable
institutions’ and the provisions of the UN Guidelines that allow for residential placements,
explicitly calling for them to be reviewed so as to meet the higher standards of the CRPD.438
To prevent the institutionalisation of children with disabilities, states are urged set up systems
that support the family, the provision of services to children with disabilities within the
community, child protection strategies, inclusive education, and family-based alternative care
that is ‘disability-inclusive’, including extended kinship care, foster care and adoption.439
Furthermore, to sustain the placement of children with disabilities in family-based alternative
care options, it is critical that these options be undergirded by the necessary training, support
and monitoring.440 States are urged to end the placement of children under the age of three in
institutions, and to take measures to end the deprivation of liberty of children with disabilities
434 Human Rights Council (HRC) Report of the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas, Rights of persons with disabilities (hereafter HRC, Report of the Special Rapporteur) (UN Doc. A/HRC/40/54, 2019) available at http://bit.ly/2NezySX (accessed 26 August 2019) para 19. 435 HRC Report of the Special Rapporteur (2019), para. 19. 436 HRC Report of the Special Rapporteur (2019), para. 19. 437 HRC Report of the Special Rapporteur (2019), paras 19, 51 and 77. 438 HRC Report of the Special Rapporteur (2019) para 51. 439 HRC Report of the Special Rapporteur (2019) para 68. 440 HRC Report of the Special Rapporteur (2019) para 68.
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through institutions run by private and faith-based organisations, including orphanages and
small-group homes.441
Furthermore, the report asserts that children with disabilities’ access to justice on an equal basis
with others is crucial to ensuring that they have the proper channels to challenge their
placement in institutions and deprivation of liberty.442 To this end, states are urged to ensure
that children with disabilities have access to ‘procedural, age- and gender-appropriate
accommodations, including supported decision-making, in all legal proceedings before, during
and after trial’.443 For that purpose, those who work in the field of the administration of justice
should be appropriately trained.444
This indicates that, in the context of alternative care of children with disabilities, placement in
institutions encompasses any placement outside a family or setting that resembles the family
environment.445 Thus, for children with disabilities deprived of their family environment,
alternative care within the wider family and within the community in a family setting can
include the extended family, foster care, kinship care, substitute family care, or any family
environment in which the child can develop stable emotional bond with a particular
caregiver.446
3.8 The obligation to review placements periodically
Article 25 of the CRC requires states to conduct periodic reviews of placements and the
situation of children engaged by the authorities for their care, protection or treatment of their
441 HRC Report of the Special Rapporteur (2019) paras 68-9. 442 HRC Report of the Special Rapporteur (2019) para 73. 443 HRC Report of the Special Rapporteur (2019) para 73. 444 HRC Report of the Special Rapporteur (2019) para 73. 445 Rosenthal (2019) 2. 446 Rosenthal (2019) 2.
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physical or mental health.447 The CRC Committee in its General Comment No. 9 has also
stressed the need to periodically review whatever form of alternative care has been selected for
a child with a disability by the competent authorities and all other circumstances relevant to his
or her placement to ensure that the placement is promoting the child’s well-being.448 The
placements envisaged in this provision include placement in foster families or institutions and
homes for children with disabilities.449 The obligation to periodically review placements of
children with disabilities deprived of their family environment in alternative care applies not
only to state-run institutions but to private institutions, services and facilities.450
The importance of article 25 on the periodic review of treatment lies in the fact it protects
children from the neglect and mistreatment that are not uncommon in institutional care.451 This
provision serves as a safety net by ensuring that all placements in alternative care are
continuously monitored and that the necessary changes are made to promote the child’s proper
growth.452 As such, article 25 complements article 19 of the CRC which requires State Parties
to take measures to safeguard children from all forms of abuse or neglect in the care of parents,
legal guardians or others who are caring for the child.453 Regulations meant for periodic review
of treatment are also useful for developing standards for professionals working and coming
into contact with children.454
However, article 25 does not impose an obligation to periodically review privately arranged
placements such as placements by parents or legal guardians. Thus, private arrangements in
447 Article 25 of the CRC reads as follows: ‘States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.’ 448 CRC Committee, GC No. 9 (2006) para 50. 449 Hodgkin & Newell (2007) 379. 450 Hodgkin & Newell (2007) 379. 451 Hodgkin & Newell (2007) 379. 452 Hodgkin & Newell (2007) 282. 453 See art 19(1) of the CRC. 454 Detrick (1999) 436.
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which relatives or friends care for a child on an ongoing or indefinite basis are not included in
the scope of article 25.455 This is unfortunate, as children who are privately placed in alternative
care are often more vulnerable than those who are placed by competent authorities.456 In
addition, this may create a disparity between children placed in institutions by a competent
authority and children placed by parents or legal guardians in respect of the level of protection
provided.457 The CRC Committee nonetheless has stressed in its Concluding Observations that
the obligation to periodically review placements is applicable as well to placements that are
informal in nature.458
There is a link between articles 25 and 3(3) of the CRC in that while the former monitors how
well the rights and needs of children are protected when they are placed in alternative care,
article 3(3) of the CRC aims to ensure that the alternative care system meets the minimum
standards applicable to competent authorities, that is, institutions, services and facilities
providing care and protection for children.459 Although this provision is often overlooked as it
is grouped with the best interests standard that dominates the discourse of children’s rights, it
does provide the basis for the state’s obligation in relation to the care and protection of children
and the state’s standard-setting and oversight role in respect of institutions, services and
facilities designed to meet that end – obligations that are expanded upon latter in the
Convention.460 To this end, the CRC Committee has urged states to follow up on the protection
of the rights of children placed in alternative care including foster care and institutions, which
indicates that states need to monitor both the systems and the individual children concerned.461
455 Hodgkin & Newell (2007) 380. 456 Hodgkin & Newell (2007) 380. 457 Phillips (2011) 51. 458 CRC Committee Concluding Observations: Guinea (UN Doc. CRC/C/15/Add.100, 1999), para. 21. 459 See arts 25 and 3(3) of the CRC. 460 Sutherland (2016) 23. 461 Hodgkin & Newell (2007) 380.
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This provision serves to ensure that institutions and other facilities that provide services for
children with disabilities conform to standards and regulations and have the safety, protection
and care of children as their primary consideration.462 Although article 3(3) lists areas of safety
and health as well as the number and suitability of staff and competent supervision as among
the criteria the state is required to meet, the term ‘particularly’ in the provision indicates that
the list is not exhaustive and that there is room for far-reaching regulation.463 During the
drafting of this article, there was a proposal to make explicit reference to the training and
qualifications of those involved in the provision of alternative care.464 This notion found its
way into the UN Guidelines, which require that attention be paid to ‘the quality of alternative
care provision … in particular with regard to the professional skills, selection, training and
supervision of carers’.465 The obligation in this regard is applicable not only to state-run
alternative care settings and services but to those operated by non-state actors.466
Although the ACRWC does not have a similar provision regarding the obligation of periodic
review of placement of children in alternative care, the ACERWC in its General Comment No.
5 requires states to have legislation providing for the periodic review of any placement of a
child in alternative care.467 Such legislation should specify the relevant role-players and provide
for preliminary as well as subsequent judicial review of any placement in alternative care.468
States are required to legislate screening measures to ensure that persons found to have harmed
children are not employed (whether as paid workers or volunteers) in positions where they have
access to children, including in institutions and orphanages.469
462 CRC Committee, GC No. 9 (2006), para 30. 463 Sutherland (2016) 42–3. 464 Sutherland (2016) 43. 465 UN Guidelines, para 71. Sutherland (2016) 43. 466 CRC Committee, GC No. 7 (2005) para 32; Sutherland (2016) 43. 467 ACERWC, GC. 5 (2018) 21. 468ACERWC, GC No. 5 (2018) 21. 469 ACERWC, GC No. 5 (2018) 21.
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3.9 Conclusion
Using the CRC, ACRWC, CRPD and the UN Guidelines, this chapter has critically analysed
the relevant provisions on the rights of children with disabilities generally and their rights to
alternative care in particular, noting the synergies, alignments and differences between these
instruments. Following the above discussion, it was found that the following provisions are the
most conducive for the realisation of the rights of children with disabilities in the context of
alternative care.
First, in relation to the obligations arising from general principles, it was established that states
should explicitly prohibit discrimination on the basis of disability in national legislation by
both state and non-state actors and recognise that the denial of reasonable accommodation
constitutes discrimination on the basis of disability. States should further include in their
national legislation that the best interests of the child is the primary consideration in all actions
concerning children with disabilities. The domestic framework of the two countries should
include provisions for the right to life, survival and development of children with disabilities.
The framework should also contain a provision which places an obligation on state and non-
state actors to ensure that the views of children with disabilities are heard and given due weight
in all actions concerning them in accordance with their age and maturity. To this end, there
should be an explicit obligation on the state to provide age- and disability-appropriate
assistance to children with disabilities to facilitate their participation. In this respect, states
should respect the evolving capacities of children with disabilities in considering and giving
due weight to their views in relation to the whole process of alternative care, in particular
regarding the determination of the most appropriate placement for the child and the planning
and review of the placement.
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With respect to the obligation imposed on states by provisions dealing directly with the right
to alternative care, Ethiopia and South Africa’s legislative frameworks are expected to provide
for the special protection and assistance to children with disabilities who are temporarily or
permanently deprived of their family environment for any reason or cannot be allowed to
remain in that environment. In addition to the provision of special protection and assistance,
the framework should include provision of alternative care to children with disabilities who are
temporarily or permanently deprived of their family environment or who for whatever reason
can no longer remain in that environment.
As to the type of alternative care that the two countries should make available for children with
disabilities, it has been established that the legislative framework should explicitly enable for
children with disabilities to be provided with alternative care within the wider family context,
and failing that, within the community in a family setting. Moreover, states should also ensure
that a range of family-based alternative options are available. Furthermore, alternative care
measures should be geared towards the full participation and inclusion of children with
disabilities in society and promote community living. States should further ensure that all
alternative care placements are subject to periodic monitoring and evaluation.
It is established that the CRPD provides a higher level of protection to children with disabilities
in some respects in the context of alternative care. From the outset, it elevates the rights of
children with disabilities by explicitly requiring states to ensure that children with disabilities
enjoy all human rights and freedoms equally, along with the provision of disability- and age-
appropriate assistance to realise their right to be heard. Most importantly, the CRPD does not
leave room for the possibility of placing children with disabilities in institutional care. Rather,
the focus is on ensuring that community- and family-based alternative care options are
available when children with disabilities find themselves in circumstances where the family is
unable to care for them. It is argued that article 23 of the CRPD is conducive to the realisation
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of the rights of children with disabilities in alternative care. The premise of this position is
found in the discussion in Chapter 1 and 2 which established that children with disabilities are
over-represented in institutions and that this has a negative impact on their development. Thus,
adherence to article 23 of the CRPD as opposed to the CRC (and the ACRWC) in this regard
should be considered by states to be more in keeping with the best interests of the child. The
rights of children with disabilities to be included in the community are also provided in the
CRPD, which supports the argument that alternative care for children with disabilities should
be provided in the community and facilitate their integration in society.
In the following chapter the legislative and policy frameworks of Ethiopia and South Africa
will be assessed and evaluated vis-à-vis international standards.
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Chapter 4: Ethiopia’s and South Africa’s Legislative and Policy
Frameworks for the Right to Alternative Care of Children with Disabilities
4.1 Introduction
The previous chapter established the legal basis for right to alternative care of children with
disabilities from both the international and regional human rights perspective, after which it
analysed the obligations imposed on states for realising the rights of children with disabilities
temporarily or permanently deprived of family environment. This chapter analyses the laws
and policies of Ethiopia and South Africa to determine if the two countries are compliant with
international human rights standards for the realisation of the right of children with disabilities
in the context of alternative care. The analysis does not purport to be an exhaustive account of
domestic laws and policies on alternative care measures and disability rights; rather, focus is
given to laws addressing the foster care and institutional care of children with disabilities. The
discussion of policy measures extends only so far as to illustrate various points. In addition,
the domestic incorporation of international and regional human rights standards in South Africa
and Ethiopia forms part of the discussion.
In the following sections, the legislative and policy measures1 adopted by the two countries
will be presented under a selected set of overarching themes covering obligations pertinent to
the effective realisation of the rights of children with disabilities in the context of alternative
care. These include the principle of non-discrimination; best interests of the child; child
participation and the right to life, survival and development; the right to alternative care; and
1 For the purpose of this thesis, the obligation to adopt ‘administrative and other measures’ is interpreted broadly in accordance with article 4 of the CRC as including measures beyond legislative measures. Thus, policy measures are discussed as part of the administrative and other measures – the discussion includes policy documents, guidelines and national plans of actions.
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the obligation of periodic review of placement. These obligations will be examined insofar as
they mutually reinforce the rights of children with disabilities to appropriate alternative care.
Before these concepts are examined, it is necessary to reflect on the domestic incorporation of
international human rights standards in the two countries.
4.2 Domestic incorporation of international human rights standards
The role of international human rights law at the domestic level is regulated by a number of
provisions in the South African and Ethiopian constitutions.2 Section 39(1)(b) of the South
African Constitution requires that courts ‘must consider’ international law when interpreting
the Bill of Rights. The same approach has been followed by the judiciary through the
jurisprudence of the Constitutional Court as early as 1996 in S v Makwanyane.3 The
interpretative role of international law is not restricted to that which South Africa has ratified,4
although it has been argued that ratified instruments have a ‘more persuasive force’.5 Courts
are further required to give preference to an interpretation statutory law in a way that is
consistent with international law where reasonable over an interpretation that is inconsistent
2 Constitution of the Republic of South Africa, 1996 (hereafter South African Constitution). Sections 39(b), 231(4), 232 and 234 of South Africa’s Constitution deal with the role of international human rights standards in the domestic context. Articles 9(4) and 13(2) of the Federal Democratic Republic of Ethiopia (FDRE) Constitution Proclamation No. 1/1995 (hereafter Ethiopian Constitution) provide guidance on the domestic incorporation of international standards. 3 In S v Makwanyane, the Constitutional Court declared capital punishment unconstitutional and inconsistent with the commitment expressed in the interim Constitution (Constitution of the Republic of South Africa, Act 9 of 1994). In doing so, it indicated the role of international agreements and customary law in providing guidance for interpreting the Bill of Rights. S v Makwanyane 1995 (3) SA 391 (CC) paras 36–7; Sloth-Nielsen J & Mezmur BD ‘(Illicit) transfer by De Gree’ (2007) 11 Law, Democracy and Development 84. 4 Dugard J ‘The role of international law in interpreting the Bill of Rights’ (1994) 101 South African Journal of Human Rights Law 208; Sloth-Nielsen & Mezmur (2007) 84–5; Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC) para 26. 5 Dugard (1994) 208; Sloth-Nielsen & Mezmur (2007) 84–5. This has been further illustrated in the Grootboom case, in respect of the ‘applicability or otherwise of the International Covenant on Economic Social and Cultural Rights (ICESCR)’, where the court stated that although the weight of particular international law differs, international law which is binding on South Africa ‘may be directly applicable’. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 28; Mezmur BD ‘”Don’t try this at home?”: Reasonable or moderate chastisement, and the rights of the child in South Africa with YG v S in perspective’ (2018) 32(2) Speculum Juris 79.
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with international law.6 Hence, international treaties serve as a guiding tool in the interpretation
of the rights of children in the courts but only have binding effect when passed into legislation
under the domestic law.7 This offers room, though not extensive, for the courts to apply
international law where they are of the opinion that it leads to the enjoyment of human rights.
In addition to its interpretative role, international law may also become part of South Africa’s
domestic law provided that it is first incorporated into national legislation or is self-executing.8
Therefore, the enactment of an international treaty into domestic legislation is a precondition
for an international law to become enforceable in domestic courts. Given the rather timid
approach to the implementation of rights and principles under international law, one would
argue that it is prudent for South Africa to ratify international instruments that have rights
which should be enforced. For instance, the key aspects of the CRC have been incorporated
into section 28 of the Constitution which makes those rights justiciable in national courts.9
Thus, the CRC has achieved ‘legal significance’ through the Constitution.10 Nonetheless,
although the CRPD has been signed and ratified by the South African government, it has not
yet been enacted into domestic law through legislation. Thus, domestic courts may not be able
to directly invoke the provisions of the CRPD.11 In the context of the alternative care of children
with disabilities, as argued in the previous chapter, the CRPD contains provisions that provide
a higher level of protection than the provisions in the CRC and ACRWC. Hence, to ensure that
children with disabilities in South Africa benefit fully from the stronger protection offered by
6 Section 233 of the South African Constitution. 7 See s 39(b) and 231(4) of the South African Constitution. 8 See s 231(4) of South Africa’s Constitution. Nonetheless, for a self-executing provision of a treaty to become domestic law automatically, it must not be in conflict with the Constitution or subsidiary legislation. 9 Sloth-Nielsen J ‘Children's rights in the South African courts: An overview since ratification of the UN Convention on the Rights of the Child’ (2002) 10(2) International Journal of Children’s Rights 139. 10 Sloth-Nielsen (2002) 139. 11 Dugard (1994) 209. Dugard makes this argument not directly in relation to the CRPD but to the application of the Charter of the United Nations (1945) by South African courts.
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the CRPD, it is crucial that the government incorporate the provisions of the CRPD into
municipal law by statute.
In Ethiopia, article 9(4) of the Constitution of the Federal Democratic Republic of Ethiopia
(1995) (Ethiopian Constitution) offers some guidance on the status of international human
rights standards by stipulating that international standards rights ratified by Ethiopia ‘are an
integral part of the law of the land’. Another provision which adds weight to article 9(4) of the
Constitution in respect of the place of international standards is article 13(2), which requires
the interpretation of the fundamental rights and freedoms recognised under the Constitution to
conform to the principles of international human rights standards ratified by Ethiopia. Pursuant
to these provisions, it has been argued that international standards ratified by Ethiopia,
including the CRC, ACRWC and CRPD, are part and parcel of domestic law in Ethiopia with
an equal status with the Constitution.12
However, the domestic incorporation of international human rights standards ratified by
Ethiopia and their subsequent implementation at all levels is not a settled issue,13 as some claim
that international standards are part of domestic laws and thus can be applied in domestic courts
directly,14 while others insist that mere ratification is not sufficient for international
conventions to be invoked in domestic courts.15 The latter argument is premised partly on the
fact that the Federal Negarit Gazette Establishment Proclamation16 requires that all laws of the
12 Yohannes S & Assefa A Harmonisation of laws relating to children in Ethiopia (2008) 6. 13 Bulto TS ‘The monist-dualist divide and the supremacy clause: Revisiting the status of human rights treaties in Ethiopia’ (2009) 23 Journal of Ethiopian Law; Idris I ‘The place of international human rights conventions in the 1994 Federal Democratic Republic of Ethiopia Constitution’ (2000) 20 Journal of Ethiopian Law; Abebe AK ‘Human Rights under the Ethiopian Constitution: A descriptive Overview’ (2011) 5(1) Mizan Law Review 47. 14 Abebe AK The Potential Role of Constitutional Review in the Realisation of Human Rights in Ethiopia (unpublished LLD thesis, University of Pretoria, 2012) 163–64. 15 Idris (2000) 113; Bulto (2009); Yeshanew SA ‘The Justiciability of human rights in the Federal Democratic Republic of Ethiopia’ (2008) 8 African Human Rights Law Journal 285–89. 16 Federal Democratic Republic of Ethiopia (FDRE), Federal Negarit Gazeta Establishment Proclamation No. 3/1995 (hereafter FDRE Proclamation No.3/1995).
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federal government be published in the Federal Negarit Gazette17 and that all federal and
regional legislative, executive and judicial organs take judicial notice of laws published in the
Gazette.18 It has to be noted that the full text of international standards, including the CRC,
ACRWC and CRPD, has not yet been published in the Federal Negarit Gazette.19 It has also
been argued that the main reason for the requirement to publish laws is to inform right-holders;
thus, the lack thereof should not be used to justify failure to enforce international treaties by
courts.20 In addition, although the general understanding is that the courts are duty-bound to
take judicial notice of laws published in the Negarit Gazeta, the validity of international
instruments takes effect when the state ratifies the international treaty and is not dependent on
its publication.21
Judicial practice in Ethiopia indicates that publication is not a precondition to apply
international treaties, as there has been some progress recently in which judges are basing their
judgments on relevant provisions of the CRC and ACRWC.22 The debate about this issue has
been cleared up to some extent by the Cassation Bench of the Federal Supreme Court’s reliance
on the CRC to resolve a case related to child custody issues, thereby affirming the argument
that international treaties can be invoked in domestic courts despite their status of publication.23
The Court referred to the principle of the best interests of the child, which is found both in the
17 FDRE Proclamation No. 3/1995, art 2(2). The Federal Negarit Gazette is the official gazette used to publicise laws. 18 FDRE Proclamation No. 3/1995, art 2(3). 19 Alemu G & Birmeta Y Handbook on the Rights of the Child in Ethiopia (2012) 25. In Ethiopia, the full text of ratified human rights standards is not produced in any proclamation. Rather, ratification proclamations are issued that contain three or four provisions specifying the time, implementing body, ratification and effective date. Gebreamanuel AB The Recognition and Implementation of Children’s Socio-economic Rights in Ethiopian law (unpublished LLM thesis, Potchefstroom Campus of the North-West University, 2014) 31; Yeshanew (2008) 287–88. 20 Abebe (2012) 166. 21 Abebe (2012) 165. 22 Alemu & Birmeta (2012) 25. The debate on the issue is a broad one and cannot be covered here. For further reading, see Yeshanew (2008); Bulto (2009); Idris (2000). 23 See, for instance, W/t Tsedale Demissie v Ato Kifle Demisse, Federal Supreme Court, Cassation Bench, File No. 23632 (6 Nov 2007) Vol 5; Federal Supreme Court, Cassation Bench, File No. 03389; Alemu & Birmeta (2012) 46; Gessesse FM & Aberra RM Impact assessment report on the draft National Child Policy of Ethiopia (2014) 23; Abebe (2012) 166.
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CRC as well the Constitution, to overrule a lower court’s decision made on the basis of the
pertinent family law provision.24 The Federal Supreme Court’s reference to international
standards is significant in this regard, as the interpretation of laws rendered by the cassation
division ‘with not less than five judges’ has a binding effect on federal as well as state courts.25
It follows that the recognition of key principles in international law is instructive to their
engagement by the Courts, despite the position of domestic incorporation in national
legislation. It would seem, however, that this is subject to the nature of the principle. For
instance, where the rights or principles included in ratified international treaties are not clearly
guaranteed in domestic laws, the issue of justiciability may arise.26
4.3 The legislative frameworks of South Africa and Ethiopia
Both South Africa and Ethiopia have undertaken various legislative measures in realising the
rights of children with disabilities in general and their right to appropriate alternative care in
particular. The South African Constitution is of particular importance to children with
disabilities as it contains provisions relevant their right to alternative care. Moreover, the
Children’s Act 38 of 2005 is South Africa’s child-rights-specific legislation which provides the
primary legal framework for the realisation of the rights of children recognised in the
Constitution, including the right to alternative care.27 In Ethiopia, the main legislation that
24 Gebreamanuel (2014) 40; Ministry of Women Children and Youth Affairs Combined 4th and 5th Periodic Reports of the Federal Democratic Republic of Ethiopia to the United Nations Committee on the Rights of the Child (2006 – 2011) (2012), para 18. 25 Federal Courts Proclamation Reamendment Proclamation No. 454/2005, art 4; Alemu & Birmeta (2012) 26. 26 Yeshanew (2008) 286. 27 Children’s Act 38 of 2005, s 2(b); Boezaart T & Skelton A ‘From pillar to post: Legal solutions for children with debilitating conduct disorder’ in Grobbelaar-du Plessis I & Van Reenen T (eds) Aspects of Disability Law in Africa (2011) 123; Boezaart T ‘The Children’s Act: A valuable tool in realising the rights of children with disabilities’ (2011) 74(2) Journal of Contemporary Roman Dutch Law 271.
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contains provisions pertinent to the alternative care of children with disabilities includes the
Ethiopian Constitution and the Revised Family Code of Ethiopia (RFC) (2000).28
The following discussion includes an analysis of the legislative frameworks of the two
countries in the light of the themes identified in the introductory part of this chapter. Thereafter,
the chapter examines aspects of South Africa’s White Paper on the Rights of Persons with
Disabilities (WPRPD) (2015), and Ethiopia’s Alternative Care Childcare Guideline on
Community-Based Childcare, Reunification and Reintegration Program, Foster Care,
Adoption and Institutional Care Service (National Guidelines) (2009) and National Children’s
Policy (NCP) (2017).
4.3.1 Non-discrimination
The non-discrimination obligation can be found in both South Africa and Ethiopia’s
constitution, in section 9 and article 25, respectively. Section 9(1) of the South African
Constitution provides for the right to equality before the law and for everyone’s equal
protection under the law.29 Section 9(2) envisions substantive equality as there is further
recognition of positive measures that may be taken to achieve the ‘full and equal enjoyment of
all freedoms’. Formal equality is concerned with the idea that ‘all persons are equal bearers of
rights’.30 This notion of equality does not take into consideration economic and social
28 The Revised Family Code Proclamation No. 213/2000 (hereafter the RFC). The RFC was adopted to replace the family law provisions of the Civil Code of 1960. Degol A & Dinku S ‘Notes on the principle: ‘The best interest of the child’ (2011) 5 (2) Mizan Law Review 333. 29 Section 9 of South Africa’s Constitution provides: ‘(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’ 30 Currie I & De Waal J The Bill of Handbook 6 ed (2013) 213.
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inequalities which exist between individuals and groups.31 Substantive equality entails that the
law seeks ‘equality of outcomes’ and ‘equality of opportunity’ by eliminating barriers that
perpetuate inequalities.32 A substantive conception of equality thus envisions material change
to rectify various forms of inequality caused by social and economic disparities.33 In
recognition of this, section 9(2) entails that steps, including legislative and other measures, be
taken to promote the achievement of equality for categories of persons previously
disadvantaged by unfair discrimination.34 This strengthens the rights of children with
disabilities in the context of alternative care and complies with the obligation set out in the
CRPD, as it would entail taking positive measures aimed at children with disabilities’ enjoying
substantive equality in terms of equal access to family-based alternatives and equal rights to
services while they are in alternative care.
Moreover, sections 9(3) and 9(4) include a prohibition of both direct and indirect
discrimination on the basis of disability and age, among other grounds, by the state or by ‘any
person’.35 This provision is significant for children with disabilities in the context of alternative
care, as it subjects not just the state but also other actors providing alternative care services to
the obligation not to discriminate and equality norms in accordance with international
standards. Section 9(5) further asserts that discrimination on the basis of disability is unfair
except in cases where it is proven to be fair.36
In South Africa, the jurisprudence of the Constitutional Court on cases relating to equality is
31 Smith A ‘Equality constitutional adjudication in South Africa’ (2014) 14 African Human Rights Law Journal (2014) 611–12; Currie & De Waal (2013) 213. 32 Smith (2014) 612–13; Currie & De Waal (2013) 213. 33 Albertyn C ‘Substantive equality and transformation in South Africa’ (2007) 23 South African Journal on Human Rights 254-58. 34 Section 9(2) of the South African Constitution. 35 See s 9(3) and (4) of the South African Constitution. 36 In 1997 the Constitutional Court developed a test in the Harksen case to determine if a person has been subject to unfair discrimination. In brief, it involves answering three questions: ‘Does the differentiation amount to discrimination?; if so, was it unfair?; if so, can it be justified in terms of the limitation clause (sec 36)?’ Harksen v Lane NO 1998 (1) SA 300 (CC) para 53; Currie & De Waal (2013) 216.
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in accordance with the non-discrimination obligation set forth in the CRPD in so far as it
supports the need for positive measures to be taken to achieve substantive equality.37 It is
noteworthy that the right to equality is not an absolute right as it is subject to the general
limitation clause in section 36 of the Constitution.38
In the case of Ethiopia, article 25 of the Constitution provides for equality before the law and
entitlement to equal protection of the law.39 This provision does not explicitly recognise
disability as a prohibited ground for discrimination. However, the omission does not
necessarily mean that the Constitution permits disability-based discrimination, as the provision
considers ‘all persons’, which includes children with disabilities, as equal before the law and
enjoying its equal protection without any discrimination.40 The obligation to not to discriminate
37 See, for instance MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) para 73; Chilemba E The National Implementation of International Human Rights Law Pertaining to Children with Disabilities in Selected Jurisdictions in Africa (unpublished LLD thesis, University of the Western Cape, 2014) 222. Furthermore, in the case of Khosa and others v Minister of Social Development and others 2004 (6) BCLR 569 (CC), the constitutionality of certain provisions of the Social Assistance Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997, were alleged to infringe children’s rights and equality and the non-discrimination obligation in ss 28 and 9 of South Africa’s Constitution, respectively. The Constitutional Court extended the right to social security to the children of permanent residents (in terms of the Care Dependency Grant and Child Support Grant). Sloth-Nielsen J & Mezmur BD ‘2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)’ (2008) 16 International Journal of Children's Rights 4–5. As established in the previous chapter, the obligation to ensure non-discrimination entails taking positive measures and the provision of reasonable accommodation which are necessary aspects of achieving substantive equality. See section 3(5)(1) of Chapter 3 of this thesis for further discussion on the obligation to not discriminate in the CRC, ACRWC and CRPD. 38 Determining the legitimacy of the limitation of rights entails a dual-stage approach. The first stage involves determining whether the conduct or a provision of the law which is the subject of litigation infringes an activity which is covered within the scope of the right. If so, then a second stage of analysis is activated that involves determining whether the infringement of the right is justifiable in accordance with s 36(1) of the Constitution. The limitation must take into account a number of relevant factors, including ‘the nature of the right; the importance of the limitation; the relationship between the limitation and its purpose; and less restrictive means to achieve the purpose’. However, once conduct or a provision of the law has been found to constitute an unfair discrimination, it has proven to be difficult to find reasons to apply the limitation clause so as to justify it as ‘reasonable’ in a society that is open, democratic and based on human dignity, equality and freedom. Currie & De Waal (2013) 217–18. This is evident in the judicial sphere, where the application of the general limitation clause on equality and non-discrimination cases never results in the questioned law being justifiable. See, for instance, National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC); Satchwell v President of Republic of South Africa 2002 (6) SA 1 (cc) para 26; Mvumvu v Minister for Transport 2011 (2) SA 473 (CC) paras 35–8; Du Toit v Minister for Welfare and Population Development 2003 (2) SA 198(CC) paras 31–7; Currie & De Waal (2013) 218. 39 Article 25 reads as follows: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall guarantee to all persons equal and effective protection without discrimination on grounds of race, nation, nationality, or other social origin, colour, sex, language, religion, political or other opinion, property, birth or other status.’ 40 Article 25 of the Ethiopian Constitution.
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can also be inferred from the constitutional provision that recognises the right of everyone to
equally access publicly funded services.41 The inclusion of the phrase ‘equal access’ creates a
direct link between the right to equality and non-discrimination set out in article 25 of the
Constitution and socio-economic rights.42
Following this approach, it has been argued the government is under obligation to ensure that
laws and policies that have the potential to result in discriminatory access to publicly funded
social services are amended or repealed.43 The word ‘everyone’ also indicates that this
provision is applicable to children with disabilities. Thus, in the context of alternative care, this
indicates that the government is obliged to ensure that children with disabilities have equal
access to alternative care services that are funded by the state and to revise laws and policies
that could result in, for instance, limited access to family-based alternative care options for
children with disabilities. However, this requirement only extends to publicly funded services
and leaves out services provided by the private sector.44 This provision limits the scope of
protection of children with disabilities by excluding private sectors with regard to the obligation
to not discriminate. This is unfortunate, as the bulk of alternative care services to children in
Ethiopia are provided are by NGOs and faith-based organisations.45 It is submitted that the
limited scope of protection may have a negative effect on children with disabilities’ access to
family-based alternative care services on an equal basis with others as well as their equal
41 See art 41(3) of the Ethiopian Constitution. Kedir A, Shiferaw A, Mulatu F et al Baseline study for a comprehensive child law in Ethiopia (2013) 93. 42 Messele R ‘Enforcement of human rights in Ethiopia’ 32 available at http://bit.ly/2uq39SK (accessed 25 June 2019); Janka DG ‘Economic, social and cultural rights and their enforcement under the FDRE Constitution‘ (2008) 1 Jimma University Law Journal 87. 43 Messele (2002) 32. 44 Kedir et al. (2013) 93. 45 Family Health International, UNICEF, Ministry of Women’s Affairs, & Child Investment Fund Foundation Improving care options for children in Ethiopia through understanding institutional care and factors driving institutionalization (2010) 31.
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treatment and enjoyment of rights and freedoms in alternative care settings operated by NGOs
and faith-based organisations.
In South Africa’s framework, the non-discrimination obligation is also found in subsidiary
legislation, including the Children’s Act and the Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA). The Children’s Act identifies non-discrimination,
including the need to ensure protection from disability-based discrimination, as one of its
general principles.46 However, a slight contrast with the obligation to ensure non-
discrimination as set out in the CRPD is that, despite making an explicit provision for the
protection of children with disabilities from unfair discrimination, the Children’s Act does not
require the provision of reasonable accommodation and ‘special or affirmative-action
measures’.47 The PEPUDA, which was enacted to give effect to the obligation set out in South
Africa’s Constitution,48 fills this gap, as it requires the elimination of barriers that unfairly
impede persons with disabilities from enjoying equal opportunities or the taking of measures
to provide reasonable accommodation for persons with disabilities.49 The definition of equality
for the purpose of the PEPUDA also recognises substantive equality, as it includes both ‘de
jure and de facto equality and also equality in terms of outcomes’.50
In the case of Ethiopia, subsidiary legislation including the RFC does not contain provisions
that either prohibit discrimination on the basis of disability or require positive measures and
46 See s 6(2)(d) of the Children’s Act. 47 Chilemba (2014) 158–59. In the previous chapter, it was established that the CRPD requires that denial of reasonable accommodation be considered as discrimination on the basis of disability. 48 According to s 9(4) of the South African Constitution, the government is obligated to adopt legislation to prevent and prohibit unfair discrimination. See s 2(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 as amended by the Promotion of Equality and Prevention of Unfair Discrimination Amendment Act 52 of 2002 (hereafter the PEPUDA). 49 Section 9(c) of the PEPUDA. Following the approach of the Constitution, the PEPUDA also prohibits unfair discrimination on the grounds of disability and details what constitutes unfair discrimination on the ground of disability. See ss 6 and 9 of the PEPUDA. Section 9(a) recognises that disability-based discrimination includes the denial or withdrawal/removal of facilities that are necessary for the ‘functioning’ of persons/children with disabilities. 50 See s 1 of the PEPUDA; Chilemba (2014) 161.
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reasonable accommodation to be provided to children with disabilities. As the constitutional
non-discrimination obligation is limited in scope, it may result in gaps in respect of ensuring
that alternative care services provided by private actors are bound by the constitutional
obligation in respect of non-discrimination.51 Moreover, under Ethiopia’s national law, the
denial of reasonable accommodation is not regarded as a form of discrimination, including in
alternative care measures,52 nor as a ground for the use of positive measures to ensure the
substantive equality of children with disabilities. This creates a legal obstacle to the realisation
of children with disabilities’ right to alternative care on an equal basis with other children. The
explicit recognition of the need to take positive measures creates a norm for the review and
reform of ‘textually neutral’ laws, policies and programmes to address past discrimination,
which could lead to substantive equality.53 This is also true for children with disabilities, as
their needs are invisible in legislation and policies and as they face multiple discrimination on
the basis of their age and disability.54 The provision of positive measures that lead to the
substantive equality of children with disabilities, such as repealing potentially discriminatory
legislation and policies, is particularly important in the Ethiopian context, as the overall
51 Chapter 3 of this thesis indicated that the obligations on states include a general guarantee of equality and prohibition of discrimination by, amongst other things, including disability as a prohibited ground of discrimination in constitutions and legislation. 52 As established in the previous chapter in s 3(5)(1), the obligation to ensure non-discrimination entails taking positive measures and the provision of reasonable accommodation, which are necessary aspects of achieving substantive equality. Under Ethiopian law, the concept of reasonable accommodation is incorporated in domestic law only in relation to the employment of persons with disabilities through the enactment of the proclamation for the employment rights of persons with disabilities. In this regard, the CRPD Committee in its Concluding Observations on Ethiopia’s initial report recommended that the government ‘adopt a comprehensive definition of reasonable accommodation in the law which applies to all rights’. The Committee further urged the government to ‘recognise the denial of reasonable accommodation in all areas amounts to discrimination as prescribed by article 5, and provide training to the public and private sectors on this obligation’. CRPD Committee Concluding Observation: Ethiopia (UN Doc. CRPD/C/ETH/CO/1, 2016), paras 9–10. 53 Gessesse & Aberra (2014) 62. 54 The CRC Committee in its concluding observation to Ethiopia’s periodic report expressed concern ‘at the continuous discrimination’ of children with disabilities. Ministry of Women Children and Youth Affairs Combined 4th and 5th Periodic Reports of the Federal Democratic Republic of Ethiopia to the United Nations Committee on the Rights of the Child (2006 – 2011) (2012), para 23.
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legislative framework views persons/children with disabilities from a medical approach and
uses derogatory terms to refer to persons with disabilities (as examined later in this chapter).55
4.3.2 The best interests of the child
The constitutions of both South Africa and Ethiopia dedicate a provision to the rights of
children that provides for the best interests of the child, in section 28(2) and article 38(2),
respectively.56 The wording of section 28 of South Africa’s Constitution is modelled on the
CRC.57 The section provides for the protection and advancement of children’s rights by placing
a series of obligations upon the state58 and defines a child as a person below the age of 18
years.59 This provision is not subject to the availability of resources, unlike other socio-
economic rights set forth in the Constitution.60
Section 28(2) deals with the best interests standard and provides that ‘a child’s best interests
are of a paramount importance in every matter concerning the child’.61 The best interests
principle under the Constitution is considered as a right that guides the interpretation of other
rights of children in the Constitution and as ‘a right in itself’.62 This provides the child with
55 See s 4(3)(7) of this Chapter. 56 South African Constitution, s 28(2); Ethiopian Constitution, art 36(2). 57 Sloth-Nielsen & Mezmur (2008) 2. 58 Section 28 reads as follows: ‘(1) every child has the right – (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f), not to be required or permitted to perform work or provide services that – (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the, shortest appropriate period of time, and has the right to be – (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and to be protected in times of armed conflict. (2) A child’s best interests are of paramount importance in every matter concerning the child. (3) In this section “child” means a person under the age of 18 years.’ 59 Section 28(2) of the South African Constitution. 60 Sloth-Nielsen J ‘The child’s right to social services, the right to social security and primary prevention of child abuse: some conclusions in the aftermath of Grootboom’ (2001) 17 South African Journal on Human Rights 220. 61 Section 28(2) of the South African Constitution. 62 Skelton A ‘Constitutional protection of children’s rights’ in Boezaart T (ed) Child Law in South Africa (2009) 280. See, for instance, the Minister for Welfare and Population Development v Fitzpatrick & others (2000) (7)
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two-fold protection – first, it affords the child a right that his or her best interests is considered
a priority in every matter affecting him or her and secondly, it entails that principle is applied
when any other constitutional right of the child is affected and not only in matters relating to
the other rights in section 28.63
The wording of this provision is slightly different from that of the provisions in the CRC,
ACRWC and CRPD regarding the best interests of the child.64 Despite the difference in
formulation, section 28(2) gives ‘wider scope of application [to] the best interests of the child’
than provided in the international standards as it is applicable to all matters affecting children.65
However, section 28(2) is also subject to the general limitation clause in accordance with
section 36 and does not have an overriding effect, as it has to be weighed against other rights.66
The Constitutional Court in S v M has held that the approach which should be followed applies
‘the paramountcy principle in a meaningful way without unduly obliterating other valuable and
constitutionally protected interests’.67 However, jurisprudence shows that the best interests of
the child are capable of overriding other interests that conflict with the principle.68
BCLR 713 para 17; Visser P ‘Some ideas on the "best interests of a child" principle in the context of public schooling’ (2007) 70 Journal for Contemporary Roman-Dutch Law 460; See Skelton A ‘Children’ in Currie & De Waal (2013) 619–20; Sloth-Nielsen (2002) 139. It has been argued, however, that the courts are uncertain if the best interests of the child amount to a rule, a principle or a right, which in turn has led to an inconsistent application of the standard. See generally Bonthuys E ‘The best interests of children in the South African Constitution’ (2006) 20 International Journal of Law, Policy and the Family. 63 Malherbe R ‘The impact of Constitutional Rights on Education’ in Boezaart T (ed) Child Law in South Africa (2009) 440. 64 It is notable that while section 28(2) uses the phrase ‘paramount importance’, the CRC and the CRPD, in arts 3(1) and 7(2), respectively, use of the phrase ‘a primary consideration’, while the ACRWC employs the phrase ‘the primary consideration’ in art 4(1). 65 Couzens M ‘The best interests of the child and the Constitutional Court: A critical appraisal’ (unpublished article, School of Law, University of KwaZulu-Natal, 2018) 3; Skelton in Currie & Dewaal (2013) 619. 66 Skelton in Boezaart T (ed) (2009) 280; Skelton in Currie & De Waal (2013) 619–20; Mills L ‘Failing children: The courts’ disregard of the best Interests of the child in Le Roux v Dey’ (2014) 131(4) South African Law Journal 856; Skelton A ‘The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments’ (2009) 9 African Human Rights Law Journal 486. See, for instance, the Minister of Welfare and Population Development v Fitzpatrick & Others 2000 3 SA 422 (CC) para 20; Sonderup v Tondelli & Another 2001 1 SA 1171 (CC) paras 33 and 35; S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC) paras 12–27. 67 S v M (2008), para 25. 68 The Constitutional Court has rendered several decisions declaring provisions in the law unconstitutional on the basis that they are against the best interests of the child. See, for instance, Du Toit and Another v Minister of
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In respect of the best interests standard in the Ethiopian Constitution, article 36(2) echoes the
equivalent of the principle in the ACRWC and attaches a higher standard by regarding it as
‘the’ primary consideration as opposed to ‘a’ primary consideration.69 This indicates that the
best interests of the child, according to the Ethiopian Constitution, have the effect of overriding
other factors, which affords stronger protection to children.70 This is significant for children
with disabilities in the context of alternative care, as it entails a higher level of compliance with
international standards.71 The provision also adopts the wider scope of the standard as provided
in the international standards, as it applies to all matters affecting children, which includes the
alternative care of children with disabilities.72 Courts have relied on the principle to ascertain
the best interests of the child in resolving matters relating to child custody and guardianship on
Welfare and Population Development and Others, 2002 (10) BCLR 1006 (CC), where the Constitutional Court relied on s 28(2) the Constitutional to overturn the provisions in the legislative framework that restricted same-sex couples from jointly adopting a child, as the provision allowed only married couple to adopt. The Constitutional Court unanimously found that the provisions restricting married couples from jointly adopting a child were unconstitutional in view of the conflict with the best interests principle recognised under s 28(2) of the Constitution. See also the Minister of Welfare and Population Development v Fitzpatrick & Others where the Constitutional Court ruled that s 184(f) of the Child Care Act was invalid as it excluded non-citizens from adopting a South African child. Minister of Welfare and Population Development v Fitzpatrick & Others 2000 3 SA 422 (CC); Skelton in Currie & De Waal (2013) 620. 69 See the discussion in s 3(5)(2) of Chapter 3 of this thesis, where it is argued that the ACRWC elevates the status of the best interests of the child to be at the forefront of all other considerations and does not allow other interests to override the interests of children. Article 36(2) of the FDRE Constitution reads as follows: ‘2. In all actions concerning children undertaken by public and private welfare institutions, courts of law, administrative authorities or legislative bodies, the primary consideration shall be the best interest of the child.’ The regional constitutions also contain provisions on the rights of children. For instance, the Revised Constitution of the Amhara Regional State (2001), the Revised Constitution of the Oromia Regional State (2001) and the Revised Constitution of the Southern Nations, Nationalities and Peoples’ Regional State (2001) provide for the rights of children in their article 36 (the same as the federal Constitution). The wording of these provisions is similar to article 36 of the federal constitution. The regional Constitutions of Tigray and Amhara National Regional State also incorporate the principle of the best interests of the child. See art 37(2) of the Constitution of the Regional State of Tigray and art 36(2) of the Constitution of the Amhara National Regional State. Yohannes & Assefa (2008) 12; Degol & Dinku (2011) 333. 70 The emphasis placed on the provision of the principle of the best interests of the child in the Constitution is stronger than that of the CRC and CRPD, as the standards require the best interests of the child to be ‘a’ primary consideration as opposed to ‘the’ primary consideration. See s 3(5)(2) of Chapter 3 of this thesis for further discussion of this obligation in international standards. 71 See section 3(5)(2) of Chapter 3 of this thesis where it is discussed that the consideration of the best interests of the child as a primary consideration in relation to the alternative care of children with disabilities entails that their best interests be the overriding factor not only when determining whether to remove a given child out of his or her family environment but in any decision regarding the choice of an alternative placement. 72 Emphasis added. The international standards discussed in Chapter 3 all adopt the wider scope, as the application of the best interests of the child extends to all actions concerning children. See art 3(1) of the CRC, art (1) of the ACRWC, and art 7(2) of the CRPD.
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several occasions.73 It has to be noted that the obligation to regard the best interests of the child
as the primary consideration extends to public and welfare institutions, courts of law,
administrative authorities and legislative bodies.74 Thus, the article also covers the provision
of alternative-care services by private organisations in Ethiopia such as NGOS and faith-based
organisations, thus further complying to the obligation set out in international standards.75
Moreover, the best interests standard is incorporated in subsidiary legislation in both countries.
In South Africa, one of the Children’s Act objectives is to give effect to section 28(2), that is,
‘that a child’s best interests are of paramount importance in every matter concerning the
child’.76 The Act provides in a separate section that ‘in all matters concerning the care,
protection and well-being of a child the standard that the child’s best interest is of paramount
importance, must be applied’.77 This includes matters affecting the alternative care of children
with disabilities. Thus, in all decisions, actions and proceedings regarding the alternative care
of children with disabilities, the best interests standard must be applied. The latter is also
referred to in the general principles of the Act, which indicate that all proceedings, actions or
decisions in a matter concerning a child must respect, protect, promote and fulfil the best
interests of the child standard as detailed in the Act.78
73 For instance, the Cassation Bench of Federal Supreme Court overturned the decision of lower courts by basing its decision on the principle of the best interests of the child in the case of W/t Tsedale Demissie vs Ato Kifle Demisse, Federal Supreme Court, Cassation Bench, File No. 23632 (2007). In addition, in the Federal Supreme Court, Cassation Bench, File No. 03389 (5 November 2007), the Cassation Bench of the Federal Supreme Court also made reference to the principle of the best interests of the child in another judgment made involving the guardianship of a child. Furthermore, in Tilahun H/Mariam and Frehiwot Tsegaye v Matewos Asaye, the Addis Ababa City First Instance Court followed the approach of the Cassation Bench of the Federal Supreme Court by passing judgment on the grounds of the principle of the best interests of the child in the Constitution and the CRC. Tilahun H/Mariam and Frehiwot Tsegaye vs. Matewos Asaye, AA First Instance Court File No. 2608/02 (2010); Degol & Dinku (2011) 336; Gessesse & Aberra (2014) 23; Alemu & Birmeta (2012) 46. 74 Article 36(2) of the Ethiopian Constitution. 75 Chapter 3 of this thesis established that both state and non-state actors are bound by the obligation to apply the best interests of the child standards in all actions concerning children, including in alternative care measures. 76 Section 2(b)(iv) of the Children’s Act. 77 Emphasis added. Section 9 of the Children’s Act. 78 Section 6(2) of the Children’s Act.
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The Children’s Act in its section 7 elaborates on the factors that must be taken into account
when applying the standard.79 These include ‘any disability that a child may have’80 and ‘the
need for a child to be brought up within a stable family environment and, where this is not
possible, in an environment resembling as closely as possible a caring family environment’.81
As such, the Children’s Act imposes a duty on the government to ensure that the application of
principle of the best interests should follow an individualised approach that takes the
‘disability-specific context’ into consideration when taking any action that concerns children
with disabilities.82 This indicates that the best interests of the child are served when he or she
is placed in family-based alternative care. Hence, the extensive engagement of the best interests
principle in the Constitution and Children’s Act indicates consistent compliance with the
international human rights standards.83
In the Ethiopian framework, in addition to the Constitution, the RFC contains a number of
provisions that reflect the best interests standard. However, the RFC’s reference to the best
interests of the child is confined to certain matters affecting children and silent on other matters
affecting them. The RFC, for instance, requires courts of law to verify whether or not adoption
is in the best interests of children before approving adoption agreements.84 In addition to the
absence of the best interests of the child standard in subsidiary legislations that applies to all
matters affecting children, it has been noted that there is lack of adequate ‘procedural rules and
79 Section 7 of the Children’s Act. 80 See s 7(1)(i) of the Children’s Act. 81 See s 7(1)(k) of the Children’s Act. 82 Chilemba (2014) 229. 83 The previous chapter in s 3(5)(2) established that the pertinent international standards require that the best interests of the child to be considered in all actions concerning children. It further explored the implication of the four general principles of the CRC and ACRWC on the right to alternative care of children with disabilities. It has been observed that the principle of best interests of the child in the ACRWC provides a higher level of protection to children with disabilities compared to the CRC as it provides for the best interests of the child to be the primary consideration in all actions concerning children. The implications of this for the alternative care of children with disabilities is significant as it imposes an obligation on states to consider the best interests of children with disabilities both pre- and post-placement in alternative care. 84 Article 194(2) of the RFC. The best interests of the child are also mentioned in arts 266(2) and 312(2) of the RFC in relation to the authority of parents and explicit emancipation, respectively.
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guidelines’ for the application and implementation of the best interests of the child in all
sectors,85 which affects the otherwise high compliance of the standard in the Constitution and
international standards. The best interests standard is also not consistently applied in alternative
care measures such as the determination of forms of alternative care, family reunification
processes and long-term placements in alternative care.86
In respect of Ethiopia’s judiciary, although the courts have relied on the best interests principle
set forth in Constitution, the CRC and ACRWC to resolve a number of cases,87 there is no
indication of a developed jurisprudence on this right, which might be due to the lack of strong
adjudication of socio-economic rights cases by the local courts.88
The Constitutional Court of South Africa has dealt extensively with children’s rights and
applied the best interests principle in real situations to uphold the rights of children, albeit that
it has not dealt with cases directly related to children with disabilities.89 The Court, while
acknowledging that the ‘expansiveness’90 and ‘indeterminate’ nature of the principle
undoubtedly poses a challenge for the implementing bodies, has held that ‘the contextual nature
and inherent flexibility of section 28 … constitutes the source of its strength’.91 The
jurisprudence shows that the application of the best interests standard should not follow a
85 Emphasis added. Gessesse & Aberra (2014) 23; Kedir et al. (2013) 95. 86 CRC Committee, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Ethiopia, CRC/ETH/CO/4–5 (2015), para 25. 87 See, for instance, W/t Tsedale Demissie v Ato Kifle Demisse, Federal Supreme Court, Cassation Bench, File No. 23632 (6 November 2007) Vol 5; Federal Supreme Court, Cassation Bench, File No. 03389; Alemu & Birmeta (2012) 46; Gessesse & Aberra (2014) 23; Abebe (2012) 166. 88 Mayessa AD ‘Derivation of rights: Affording protection to latent socio-economic rights in the FDRE Constitution’ (2013) 2 Oromia Law Journal 60. 89 Chilemba (2014) 229–30. See, for instance, Du Toit and Another v Minister of Welfare and Population Development and Others, 2002 (10) BCLR 1006 (CC); Minister of Welfare and Population Development v Fitzpatrick & Others 2000 3 SA 422 (CC); S v M (2008) (3) SA 232 (CC). 90 The Constitutional Court referred to s 28(2) as ‘an expansive guarantee’ that a child’s best interests will be paramount in every matter concerning the child. Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) para 29. 91 S v M (2008), paras 23 and 24.
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‘predetermined formula’.92 Rather, its proper application entails flexibility and ‘individualised
examination of the precise real-life situation of the particular child involved’.93
This is also the approach followed by international monitoring bodies in their effort to give
meaning to the concept and provide guidance to states on the application of the best interests
standard. This is indicative of the fact that in the context of alternative care of children with
disabilities, there cannot be a perfect solution or one form of alternative care that is always in
the best interests of every child with a disability. Hence, when determining the best interests of
a child with a disability deprived of his or family environment, one has to consider the
individual circumstances of the given child, the disability of the child, the child’s need to be
cared for in a family-based environment, and all the options available to arrive at the placement
or form of alternative care that in the short and long term would serve the child’s best interests
to the maximum. However, it is safe to argue that there is a general consensus that placement
in institutional care is not in the best interests of children in general and specifically children
under the age of three years.
4.3.3 Child participation
Neither the South African nor Ethiopian Constitution have a provision on child participation.
In the case of South Africa, despite the Constitution’s silence, section 10 of the Children’s Act
fills this gap, as it provides for the right of the child to participate in all matters that affect him
or her in accordance with his or her ‘age, maturity and stage of development’ and for his or her
views to be given due regard.94 The term ‘in all matters’ recognises the obligation in
international standards and implies that decisions, proceedings and actions regarding the
92 S v M (2008), para 24. 93 S v M (2008), para 24. 94 Section 10 of the Children’s Act reads as follows: ‘Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.’
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removal of children with disabilities from their family environment and the determination of
the form of alternative care for them should involve their participation and see their views being
given due consideration in accordance with their age, maturity and level of development.95
Furthermore, the Children’s Act makes it mandatory for the court to take cognizance of the
views of the children in determining whether to extend a placement order.96 The Act also
ensures that children with disabilities have the opportunity to express their views in children’s
courts proceedings by requiring the court to ‘allow a child to his or her views and preferences
in accordance with the child’s age, maturity and stage of development and any special needs
that he or she may have’.97 In view of this, it has been noted that ‘the solicitation of children’s
views runs like a golden thread through the Children’s Act, thereby rendering the Act a
thoroughly modern text’.98
However, there is no explicit obligation in the Children’s Act that requires children with
disabilities be provided with age- and disability-appropriate assistance in accordance with the
CRPD.99 This may pose a barrier for children with disabilities to be able to participate in
matters affecting them, including in proceedings regarding their placement in alternative care,
as the court is given discretion to decide whether to allow the participation of a child after
having considered any special needs the child may have.100 An explicit obligation to this effect
95 The previous chapter, in s 3(5)(4) established that states are required to ensure that the views of children are sought and given due regard in decisions relating to their placement, development and review of care plans, and visits with parents and family. In addition, children’s views should be solicited and considered in all alternative care settings. 96 Section 159(2)(a) of the Children’s Act. 97 Section 61(1)(a) of the Children’s Act. 98 Sloth-Nielsen J ‘Seen and heard? New frontiers in child participation in family law proceedings in South Africa’ (2009) 23 (2) Speculum Juris 5. 99 Chapter 3 of this thesis in ss 3(6)(3) and 3(5)(4) argued that the CRPD provides a higher level of protection to children with disabilities and that, in doing so, the CRPD acknowledges the multiple discrimination that children with disabilities face on the grounds of both childhood and disability. 100 Section 61(1)(a) of the Children’s Act reads: ‘(1) The presiding officer in a matter before a children's court must (a) allow a child involved in the matter to express a view and preference in the matter if the court finds that the child, given the child's age, maturity and stage of development and any special needs that the child may have, is able to participate in the proceedings and the child chooses to do so.’
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in the Children’s Act would have ensured that children with disabilities are not excluded from
participating in court proceedings on the basis of their disability and are provided with
appropriate modes of communication to be able to weigh in on their preferences when it comes
to their placement in alternative care and on their circumstances post-placement.101
In respect of Ethiopia’s legislative framework, the RFC gives recognition to the obligation of
child participation in a number of issues relating to children.102 While these provisions entitle
the child to be consulted in certain matters affecting him or her, the provisions are restricted to
specific aspects of the rights of the child and do not extend to all matters affecting him or her
in accordance with international standards.103 It is also notable that the RFC gives the courts
discretion over consulting a child before reaching a decision on the appointment and removal
of guardians and tutors of a minor.104 This indicates that consulting the child is a matter of
choice rather than obligation, which is not consistent with international standards, which
require states to ensure that the views of children with disabilities are heard and given due
weight in all matters concerning them in accordance with their age and maturity. In the light
of the CRPD and the obligation on the government to provide children with disabilities with
101 The CRPD in its art 7(3) requires State Parties to ensure that children with disabilities ‘have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right’ (emphasis added). 102 For instance, in relation to the adoption of a minor, the RFC mandates that the courts shall take into consideration the child’s opinion before the approval of an adoption agreement. Furthermore, it provides that where one of the parents is not willing to give his or her consent to the adoption of a child, the court may approve the adoption after hearing the opinion of the child and the other parent, provided that the child is above 10 years old. The RFC also requires tutors to consult the child on serious matters affecting his or her property if the child is 14 years of age. See arts 194(3)(a), 291(1) and 191(3) of the RFC. 103 Chapter 3 of this thesis in s 3(5)(4) established that the CRC requires that all children capable of forming views have the right to express their views freely on all matters affecting them, whereas art 4(2) of the ACRWC requires states to provide a child ‘who is capable of communicating his or her own views’ the ‘opportunity’ to do ‘in all judicial or administrative proceedings affecting a child’. Article 7(3) of the CRPD requires children with disabilities’ views to be heard on all matters affecting them on an equal basis with others in accordance with their age and maturity. 104 Article 249(2) of the RFC of Ethiopia. See also Kedir et al. (2013) 96.
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age- and disability-appropriate assistance to facilitate their effective participation, the
provisions of the RFC dent its compliance with the international standards.105
Access to justice is another right fundamental to child participation in the context of the
alternative care of children with disabilities. This right is a necessary component for the
effective implementation of basic rights and freedoms guaranteed in international and domestic
frameworks,106 including the right to alternative care. When children with disabilities have
access to justice on an equal basis with others they are assured an equal opportunity to assert
their rights, including their right not to be discriminated against in alternative care measures.
In this regard, South Africa’s Constitution affords everyone the right of access to court.107
Through the establishment of the children’s court and a provision allowing children to bring
matters to court, the Children’s Act enhances children with disabilities’ access to justice.108 In
terms of the Children’s Act, children are allowed to bring a matter to court and to be assisted
to this end on condition that the matter falls within the jurisdiction of that court.109 By virtue
of the phrase ‘every child’, this section can be seen as inclusive of children with disabilities’
right to access the courts.110 This is further supported in that the Children’s Act requires the
children’s court to be accessible to children with disabilities.111 Unlike the provision on child
participation, which has a number of qualifiers pertaining to, inter alia, the level of
105 CRPD, art 7(3). The CRPD places a stricter obligation on states by requiring that children with disabilities’ views be heard on an equal basis with others in accordance with their age and maturity and that they be provided with age- and disability-appropriate assistance in order to realise the right. The CRPD further provides for the full and effective inclusion of children with disabilities in society and for respect for their evolving capacities. These principles, together with that of non-discrimination, guide the interpretation and implementation of the right to alternative care of children with disabilities. 106 Beqiraj J, McNamara L & Wicks V Access to Justice for Persons with Disabilities: From International Principles to Practice (2017) 15. 107 Section 34 of the South African Constitution reads: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’ 108 Sections 42(1) and 53(2)(a) of the Children’s Act; Carter EI Access to Justice for Children with Disabilities: The South African Context (unpublished LLD thesis, University of Pretoria, 2015) 118. 109 Section 14 of the Children’s Act. 110 Carter (2015) 118. 111 Section 42(8)(d) of the Children’s Act.
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development, age and maturity of the child, the provision relating to the right of a child to bring
a matter to court is not restricted except for the question of jurisdiction.112 However, South
Africa’s legislative framework does not address supported decision-making as it relates to
children with disabilities and measures to enable them to make decisions and participate in
decision-making.113 Another necessary component of access to justice of children with
disabilities, as discussed in the previous chapter, is the training of those involved in the field
of administration of justice.114 This is one area of disparity in respect of the Children’s Act and
the CRPD, as the former does not require that judicial officials be trained on issues related to
children’s rights.115 Unless magistrates are properly trained in children’s rights, it would be
unrealistic to expect them to ensure that the rights of the child to participate are realised in a
manner envisaged by the Children’s Act.116
In the case of Ethiopia, there is no law that explicitly provides for the right of access to justice
of persons with disabilities or children with disabilities. Nonetheless, the Constitution provides
for the right of everyone ‘to bring justiciable matter to, and to obtain a decision or judgment
by, a court of law or any other competent body with judicial power’.117 Thus, given the phrase
‘everyone’, it could be said that children with disabilities too are holders of this right. There is
also no explicit law that requires that persons with disabilities or children with disabilities to
be provided with procedural and age-appropriate assistance in order to facilitate the realisation
of the right. There is also no obligation for the training of those working in the justice sector.118
112 Carter (2015) 118–19. 113 Carter (2015) 108–9. 114 See Chapter 3 of s 3(7)(4) this thesis for discussion of the right to access justice in the context of the alternative care of children with disabilities. 115 Jamieson L ‘Children and young people’s right to participate in residential care in South Africa’ (2017) 21(1) The International Journal of Human Rights 93. 116 Zaal FN Court Services for the Child in Need of Alternative Care: A Critical Evaluation of Selected Aspects of the South African System (unpublished PhD thesis, University of the Witwatersrand, 2008), Chapter 8; Jamieson (2017) 93. 117 Emphasis added. Ethiopia’s Constitution, art 37(1). 118 See CRPD, art 13(1)–(2).
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The government, however, claims, in its reply to the list of issues to the initial report of Ethiopia
to the CRPD Committee that support is provided to persons with disabilities at various stages
of legal procedure.119 It is further claimed that the government has been providing regular
training to those working in the administration of justice to ensure the promotion of the CRPD
and to facilitate reasonable – and procedural – accommodation in the justice sector at the
federal and regional levels.120 This omission would create a much wider gap in relation to
realising the rights children with disabilities to participate, as such children require additional
support. Thus, the actors involved need specific skills to be able to ensure that children with
disabilities are provided with the necessary assistance to participate in all areas including in
court proceedings affecting them; this would require, among other things, that clerks and
magistrates be trained on children rights in general and issues related to disability in particular.
4.3.4 The right to life, survival and development
The right to life of ‘everyone’ is provided for in section 11 of the South African Constitution,
while Ethiopia’s Constitution explicitly provides for the right to life of the child in its child-
specific provision.121 Neither constitution, however, contains an explicit provision on the right
of the child to survival and development. Aspects of the survival and development of the child
are implied through an interpretation of other rights in both cases.122 The survival and
development aspects of the right can be gleaned from an array of rights in South Africa’s
Constitution, including the right of a child to basic nutrition, shelter, basic health-care services
and social services (section 28(1)(c);123 the socio-economic rights afforded to ‘everyone’
119CRPD Committee, Replies of Ethiopia to the List of Issues of Initial Report (UN Doc. CRPD/C/ETH/Q/1/Add.1, 2016) (hereafter CRPD Committee, Replies of Ethiopia to the List of Issues of Initial Report (2016)) para 37. 120 CRPD Committee, Replies of Ethiopia to the List of Issues of Initial Report (2016) para 38. 121 Ethiopia’s Constitution, art 36(1)(a). 122 Dutschke M & Abrahams K ‘Children’s right to maximum survival and development’ Child Survival Project: Rights in Brief (2006) 3 available at http://bit.ly/2s4ZnNQf; Kedir et al. (2013) 96. 123 Section 28(1)(c) of the South African Constitution.
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including the right to access to adequate housing (section 26); the right to have access to health-
care services, sufficient food and water and social security, including – if they are unable to
support themselves and their dependants – appropriate social assistance (section 27); and the
right to basic education and further education (section 29).124 Similarly, Ethiopia’s Constitution
indirectly protects the right to survival and development of the child by requiring that the
government allocate resources to provide for public health, education and other social
services.125 The right to life, survival and development can also be inferred from the obligation
to protect the child from harm, abuse and exploitation in the Constitution.126 However, there is
no provision that explicitly affords the right to survival and development to children, including
children with disabilities in all settings.
Like the Constitution, the Children’s Act of South Africa also does not contain an explicit right
to survival and development of the child. However, the Act recognises critical aspects of the
right to life, survival and development of a child by incorporating a range of rights pertinent to
realising the right.127 The Children’s Act makes reference to the development of the child in its
preamble, which states that ‘the child should grow up in a family environment and in an
atmosphere of love, happiness and understanding’ to ensure the ‘full and harmonious
development of his or her personality’.128 This indicates that the development of the child is
best secured in a family environment, which may in turn indicate that the full and harmonious
development of children with disabilities deprived of their family is better realised in family-
based alternative care.
124 Dutschke & Abrahams (2006) 3. 125 Article 41(4) of the Ethiopian Constitution reads as follows: ‘The State has the obligation to allocate an ever increasing resources to provide to the public health, education and other social services.’ 126 FDRE Constitution, art 36(1)(d) and (e); Kedir et al. (2013) 96. 127 Sloth-Nielsen & Mezmur (2008) 9. 128 Children’s Act, Preamble.
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In Chapter 3 it was argued that the right to life, survival and development of children in relation
to alternative care would require providing family-based alternative care.129 In this regard the
Constitution provides for the right to ‘appropriate’ alternative care.130 The Children’s Act, on
the other hand, requires that in any matter concerning children with disabilities due
consideration must be given to providing the child with parental, family or special care
whenever appropriate.131 It further provides for a range of rights which are relevant to the
survival and development of children with disabilities who are deprived of their family
environment, including the provision of alternative care in the form of foster care, cluster foster
care, CYCCs and temporary safe care.132 Moreover, one of the factors which has to be taken
into account when applying the best interests standard is the holistic development of the child,
including his or her emotional, social and cultural development and physical and emotional
security.133
The RFC of Ethiopia also contains provisions that serve to protect the right to life, survival and
development of the child.134 For instance, it requires the ‘guardian to look after the health of
the child, to educate and oversee the social development and relationships of the child’.135 In
addition, the right to life, survival and development is indirectly protected, as the Code places
an obligation on the parents to ensure the proper upbringing of the child.136
From the above discussion it is established that, apart from the right to life of the child which
is explicitly provided in general terms in the South African Constitution and explicitly provided
129 See s 3(5)(3) of Chapter 3 of this thesis for further discussions on the right to life, survival and development of children with disabilities in the context of the alternative care. 130 Section 28(1)(b) of the South African Constitution reads as follows: ‘Every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment.’ 131 Section 11(1)(a) of the Children’s Act. 132 Section 156(1)(e)(i)–(v) of the Children’s Act. 133 Section 7(1)(h) of the Children’s Act. 134 Kedir et al. (2013) 96. 135 The RFC of Ethiopia, arts 257–260; Kedir et al. (2013) 96. 136 The RFC of Ethiopia, arts 219 and 220; Kedir et al. (2013) 96.
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in the Ethiopian Constitution, the frameworks do not explicitly provide for the survival and
development aspect of this principle. One can argue that the lack of explicit provision for a
right to survival and development that is cross-cutting under the national law may weaken its
application in all areas, particularly in relation to vulnerable children such as children with
disabilities who are in alternative care in general and institutional care in particular.137 The lack
of specificity presents an unclear position that may be used to the detriment of children in
general and in particular children with disabilities in need of alternative or already in alternative
care. Moreover, the inclusion of a provision to promote the holistic development and survival
of all children including children with disabilities in all settings would have been indispensable
in particular to children with disabilities in institutional care.138
4.3.5 Alternative care
The South African Constitution expressly provides for the right of a child to ‘family care or
parental care, and to appropriate alternative care when removed from the family
environment’.139 This section serves to protect children from being unnecessarily separated
from their families except on legitimate grounds and when such separation is in the best
interests of the child.140 It further serves to ensure that when the separation of the child from
137 The right to life, survival and development, which is derived from article 6 of the CRC, is one of the four general principles and therefore informs the interpretation of all the articles in the Convention. Its counterpart can be found in article 5 of ACRWC, which also provides that every child has an inherent right to life that must be protected by law and which obligates states to ensure the survival, protection and development of the child. See discussion in s 3(5)(3) of Chapter 3 of this thesis for further discussion on the right to life, survival and development of the child in the CRC and ACRWC and how the right informs their right to alternative care. 138 Chapter 3 of this thesis in s 3(5)(3) established that the ‘development’ aspect of the right requires states to interpret the term broadly to include the ‘physical, mental, psychological and social development’ of the child. 139 The South African Constitution, s 28(1)(b). See, for instance, the case of V v V 1998 (4) SA 169 (C) involving the custody of the child upon divorce, in which the father denied an application of joint custody by a mother on the basis that she was involved in a sexual relationship with another woman. The father restricted the mother’s access to the child for fear that the child would be negatively influenced by the mother’s sexual orientation. The court granted joint custody on the basis of the child’s right to parental care in terms of s 28(1)(b); Sloth-Nielsen (2002) 142. 140 For instance, in the case of C v Department of Health and Social Development, Gauteng 2012 (2) SA 208 (CC), the court declared ss 151 and 152 of the Children’s Act, which allowed the removal of the child from family care by state officials and placement in temporary safe care, unconstitutional owing to the absence of a procedure for automatic review of the decision to remove the child; Skelton (2013) 605.
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his or her family environment becomes unavoidable, alternative care is provided that is
appropriate to him or her. Section 28(1)(b) of the Children’s Act and section 9(2) of the
Constitution obligate the government to provide appropriate alternative care to children with
disabilities deprived of their family environment and to take steps to ensure that they are not
discriminated against in alternative care measures.
It is notable that the Constitution of South Africa requires that the form of alternative care
selected for a specific child removed from the family environment must be appropriate
alternative care.141 Although no elaboration is provided of the meaning of ‘appropriate
alternative care’,142 it has been interpreted to mean care of such a nature and quality that it
resembles family or parental care and can provide for the protection, development and well-
being of children with disabilities in the absence of family or parental care.143 This obligation
is not subject to progressive realisation and is restricted only by the limitation clause.144 This
means that South Africa has an immediate obligation to provide alternative care to children
with disabilities unless it is a justifiable limitation saved by the Bill of the Rights.145
The Ethiopian Constitution requires special protection to be accorded to orphans and for the
establishment of institutions for their adoption, well-being and education.146 However, the
provision’s reach is confined to ‘orphans’ despite the various circumstances, apart from the
death of parents, in which a child might end up being without parental care and in need of
141 Section 28(1)(b) of South Africa’s Constitution. 142 Nonyana-Mokabane M Children in Need of Care and Protection and Their Right to Family Life (unpublished PhD thesis, University of Pretoria, 2012) 911. 143 Bekink B & Brand D ‘Constitutional protection of children’ in Davel CJ (ed) Introduction to Child Law in South Africa (2000) 184. 144 See Jamieson (2014) 220 145 Jamieson (2014) 220. 146 Article 36(5) of the Ethiopian Constitution. In respect of family laws in regional states, the Constitution gives regional states the power to enact their own family codes. Thus, each regional state is allowed to enact its own laws on family and alternative care issues. Accordingly, various regional states have enacted family laws which bear a strong resemblance to the Federal Family Code. Kedir et al. (2013) 153; Yohannes & Assefa (2008) 13–4. It is beyond the scope of this thesis to give a detailed analysis of the compatibility of each of these regional family laws, but it has to be noted that they are bound to adhere to the federal constitution.
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alternative care.147 Moreover, apart from institutional care and adoption, the Constitution
makes no reference to other forms of alternative care for orphaned children.148 This indicates
non-compliance with international standards, in particular the CRPD which does not support
the institutionalisation of orphaned children with disabilities.149 It is submitted that the non-
compliance of the provision may result in excessive dependence on institutions as a means to
care for children deprived of parental care.
The Ethiopian Constitution further requires the state to allocate resources and provide
rehabilitation and assistance to children without parents or guardians.150 The scope of this
provision is wider than that of article 36(5) of the Constitution, as it extends not just to orphans
but children without guardians. However, this entitlement is made subject to the availability of
resources.151 It has been argued that this dependence on assistance should be cause for concern,
considering that ‘[a] guarantee that suitable assistance will be provided cannot be given under
such conditions’.152 This reflects the obligations in international standards that subject socio-
economic rights to the availability of resources and to progressive realisation.153 This provision
does not bestow rights on children deprived of parental care or guardians, but merely speaks to
the duty-bearer and is further qualified by the availability of resources, which indicates that the
state is obligated to provide rehabilitation and assistance to children deprived of their family
147 Yohannes and Assefa (2008) 26. 148 See also Phillips C Child-Headed Households: A Feasible Way Forward, or an Infringement of Children’s Right to Alternative Care? (2011) 173. 149 See art 23(5) of the CRPD; see also s 3(7)(4) of Chapter 3 of this thesis where it is demonstrated that the CRPD provides a higher level of protection to children with disabilities by requiring children with disabilities who are unable to live with their families to be to be provided with alternative care that is family-based and by further supporting this right by explicitly according children with disabilities with the right to live in the community on an equal basis with others. 150 Article 41(5) of the Ethiopian Constitution reads as follows: ‘The State shall, within available means, allocate resources to provide rehabilitation and assistance to the physically and mentally disabled, the aged, and to children who are left without parents or guardian.’ 151 See art 41(5) of the Constitution. 152 Article 41(5). See also Phillips (2011) 173. 153 In s 3(4) of Chapter 3 it was established that in respect of the nature of states’ obligations under the CRC and the CRPD, socio-economic rights are subject to progressive realisation to the maximum extent of states’ available resources.
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environment only when resources allow. This entitlement is thus riddled with qualifications
and is weak in nature, as it does not afford children deprived of their family a right to
rehabilitation and assistance that can be claimed from the state.
In respect of South Africa, the judiciary has dealt with section 28(1)(b) of the Constitution in
Centre for Child Law v MEC for Education.154 The Court in its ruling reaffirmed that the
children’s rights under section 28 were not subject to the availability of resources, but rather
immediately realisable and without qualification.155 The Court reiterated the state’s obligation
to bear the primary responsibility for providing for the needs of children,156 which has been
interpreted to include adequate funding of CYCCs with regard to the effective provision of
nutritious food, health-care services, shelter and social services.157 As such, the order of the
Court entitled the children who were placed in a parlous conditions in a school of industry to
the provision of their basic needs158 as well as psychological and therapeutic needs.159 It
underlined that the equality argument is an implausible defence, especially where it perpetuates
an infringement on grounds of a significant cost to the state.160
154 2008 SA 223 (T). The case involved children who were placed in a school of industry in terms of s 15(1)(d) of the Child Care Act 74 of 1983, which allowed a children’s court to place a child in a school of industry if after review it was found that the child was in need of care. The first applicant, the Centre for Child Law, sought orders that the respondents be compelled to provide sleeping bags to each child and to establish a ‘proper access control and psychological support structures, and to make immediate arrangements for the school to be subject to a developmental quality-assurance process’. It also claimed that the parlous conditions to which children in a certain school of industry were subjected violated their constitutional rights under ss 10, 12 and 28(b) and (c) of the Constitution with regard to the right to dignity, the right to not be subjected to cruel, inhuman or degrading treatment, and the rights of children, respectively. Sloth-Nielsen & Mezmur (2008) 10–11. 155 Centre for Child Law v MEC for Education and Others, 227 I–J. 156 Centre for Child Law v MEC for Education and Others, 228 F–G. 157 Proudlock P ‘Children’s socio-economic rights’ in Boezaart T (ed) Child Law in South Africa (2009) 222. 158 Centre for Child Law v MEC for Education and Others, 228 F-G. 159 Centre for Child Law v MEC for Education and Others, 231 D–F. 160 The MEC for education in the province counter argued that the provision of sleeping bags for such children would be contrary to the constitutional obligation of the equality principle in that children who are in a similar circumstance would pursue the same remedy ‘at a very significant cost to the State’. The defendant proposed seeking assistance from the Red Cross and other donors in the provision of sleeping bags for the children. Centre for Child Law v MEC for Education and Others, 228 C–G.
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Alternative care is dealt with in subsidiary legislation in South Africa and Ethiopia’s legislative
frameworks. However, while the Children’s Act contains extensive provisions for children in
the context of alternative care, in Ethiopia the RFC offers a more generic provision in this
regard. Moreover, unlike South Africa’s rich jurisprudence on socio-economic rights in general
and children’s rights in particular, Ethiopia lacks strong adjudication of socio-economic rights
cases in the local courts.161
The RFC of Ethiopia covers various issues including provisions for the health, education and
upbringing of a child162 and adoption.163 It is noteworthy that provisions allowing intercountry
adoption in the RFC were recently amended to ban intercountry adoptions.164 Parents bear the
primary responsibility for the care and support of their child.165 In the absence of parents, the
RFC lists the extended family responsible for providing care and support of a child without
parental care.166 In doing so, it requires that responsibility be transferred to the following family
members: grandparents, siblings who have attained majority and the aunt or uncle of the child,
respectively.167 It mandates the court to appoint a guardian for the child in cases where, after
exploring the abovementioned care options, the child is still found to be without any
guardianship.168 From this provision it is evident that the RFC provides for alternative means
of care in the absence of parents and the extended family. However, there is non-compliance
where there is no explicit provision for the court to prioritise family-based alternative means
161 Mayessa (2013) 60. 162 The RFC, arts 257, 258 and 260. 163 The RFC, arts 180–96. 164 Goitom H ‘Ethiopia: Federal Family Code amended, ending intercountry adoption’ (2018) Law Library of Congress Official Blog available at http://bit.ly/35wq1wL (accessed 12 February 2018). 165 Article 216(1) of the RFC reads as follows: ‘A minor, as regards the proper care of his person, shall be placed under the authority of a guardian.’ 166 Article 225 of the RFC reads as follows: ‘Where the child no longer has his father and mother, and in default of a valid appointment made by the survivor, the functions of guardian or tutor of the child shall devolve, by virtue of the law, on the following persons: (a) ascendants of the child; (b) in their default, the brothers or sisters of the child who have attained majority; (c) in their default, the uncle or aunt of the child.’ 167 Article 225 of the RFC. 168 Article 227(1) of the RFC reads as follows: ‘There by applying the preceding Articles, a child remains without a guardian or tutor, the functions may be entrusted to such person as may be appointed by the court.’
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of care and for institutional care to be a measure of last resort.169 The RFC also does not require
special protection and assistance to be provided for children deprived of their family
environment in accordance with the international obligations.170
In terms of the Children’s Act, there are various circumstances in which a child may be
categorised as being in need of care or protection, which is subject to a decision by court.171
The groups of children categorised as in need of care and protection are comparable to
vulnerable children recognised in the UN Guidelines.172 In circumstances where a child is
found to be in need of care and protection, a legal intervention may be required by means of
placement in alternative care.173 The Children’s Act does not define ‘alternative care’ but
describes when a child is said to be in alternative care.174 Accordingly, for the purposes of the
Children’s Act, a child is in alternative care if he or she has been placed in foster care, in a
CYCC or in temporary safe care.175 To this end, the Children’s Act offers a range of alternative
care options for children considered to be in need of care and protection, including alternative
care consisting of foster care, cluster foster care, temporary safe care and CYCCs.176 There are
also orders that the court can make as part of the effort to secure stability in the life of a child
169 While the CRC and the ACRWC allow for institutional care as a measure of last resort, the CRPD insists that alternative care for children with disabilities deprived of their family environment be provided within the extended family and, when that is not possible, within the community in a family setting. See art 20(3) of the CRC, art 25(2)(a) of the ACRWC and art 23(5) of the CRPD. See also s 3(7)(4) of Chapter 3 of this thesis for an analysis of the right to alternative care of children with disabilities in the CRPD. 170 Article 20(1) of the CRC and art 25(1) of the ACRWC entail that children deprived of their family environment are provided with special protection and assistance. In s 3(7)(2) of Chapter 3, it was argued that ‘special protection and assistance’ are not synonymous with the provision of alternative care, and that it requires that additional measures be taken. In relation to children with disabilities, the provision of ‘special protection and assistance’ entails being cognizant of their particular vulnerabilities, such as disability, when determining alternative care placements. 171 In terms of s s150 and 156 of the Children’s Act. 172 See UN Guidelines, para 9(b). 173 Matthias C & Zaal N ‘The child in need of care and protection’ in Boezaart T (ed) Child Law in South Africa (2009)163–64. In terms of the Children’s Act, any decision which would result in the removal of child from the family must be made through a court. In an emergency where children are considered to be in immediate danger, the decision to remove a child should at least be confirmed by a court. This requirement for an automatic review to the Act was added by the Constitutional Court within the judgment in C and Others v Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC). Jamieson (2014) 225 174 Section 167(1) of the Children’s Act. 175 Section 167(1)(a)–(c) of the Children’s Act. 176 Section 156(1)(e)(i)–(v) of the Children’s Act
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found to be in need of care and protection.177 To this end, the Children’s Act stipulates that
very young orphaned and abandoned children must be made available for adoption, unless
adoption is not in their best interests.178 In the interim, South Africa’s legislation is in
compliance with international standards which recognise the importance of placement of very
young children in a family-based care.179 The subsection below discusses the concepts of foster
care, cluster foster care and CYCCs.
4.3.5.1 Foster care
Foster care is a favourable option for children where remaining in parental care, reunification
and adoption are not possible.180 According to the Children’s Act of South Africa, foster care
is the placement of a child in the care of a person other than a parent or guardian.181 The court
may place a child in the care of a non-relative, a relative other than the child’s parent or
guardian or in a registered cluster foster care scheme.182 The maximum number of children that
can be placed in the care of a single foster parent or two people sharing a household is six,
unless the intention is to keep siblings or blood relatives together or if a court considers it to be
in the best interests of the children.183
A crucial protective measure with regard to the rights of children placed in foster care is that
the Children’s Act specifies a number of conditions to be met by a foster parent to care for
177 Section 157 of the Children’s Act. 178 Section 157(3) of the Children’s Act. 179 See s 3(7)(3) of Chapter 3, where it is demonstrated that the CRC Committee on various occasions explicitly underscored the exceptional and subsidiary nature of measures that imply the institutionalisation of children when the implementation of any other type of special measure of protection is impossible or inappropriate. The CRC Committee’s General Comment No. 7 strongly advises states not to place young children in institutions. CRC Committee, GC No. 7 (2005), para 36(b) and (d). The UN Guidelines also clearly state that they should be placed not in residential care but in family-based settings, subject to a number of exceptions. UN Guidelines, para 22. 180 South African Law Commission (Project 110) Report on the Review of the Child Care Act (2002) 215; Gallinetti J & Loffell J ‘Foster care’ in Davel C & Skelton A (eds) Commentary on the Children's Act (2010) 9. 181 Section 180(3) of the Children’s Act. In South African law, foster care is commonly considered a temporary alternative care arrangement and does not necessarily involve the transfer of parental responsibility or terminate the rights of biological parents. Foster care placements trigger gradual efforts towards reuniting a child with his or her family or lead to a process of adoption where it is in the best interests of the child. Skelton (2013) 608. 182 Section 180(3). 183 Section 185(1)(a) and (b).
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children.184 One of these conditions is that the prospective foster parent should be ‘a fit and
proper person’.185 However, there is no definition of ‘fit and proper’ in the Act. It has been
argued that ‘fit and proper’ refers to a person who can provide care for a child that will meet
the purposes of foster care as set out in section 181.186 It may be argued that the lack of
definition of the ‘fit and proper’ creates a gap in ensuring that foster parents are qualified and
have the necessary requirements to care for children including children with disabilities. An
explicit recognition of this is necessary, as there is no further reference in the Act to the needs
of children with disabilities in relation to foster care that would ensure that prospective foster
parents have the proper training and preparation to respond and cater to the needs of such
children. This gap may result in multiple placements of children with disabilities that in turn
may put them at risk of neglect and maltreatment. Moreover, the lack of available trained foster
carers also increases the likelihood of children with disabilities’ ultimately being placed in
institutional care as a ‘measure of last resort’, since due to their lack of training and preparation
foster families may be reluctant to take in children with disabilities on account of the latter’s
physical, sensory, psychological, or mental status.187 Thus, in circumstances like these, a child
with a disability’s placement in institutional care cannot be justified under the guise of a
‘measure of last resort’. Therefore, if family-based alternative care options such as foster care
are to be available in a non-discriminatory manner and to be inclusive of children with
disabilities, then there is a need to clearly provide for the identification of accredited foster
carers who can avail children with disabilities with such care.
184 Section 182 (2)(a)–(d). 185 Section 182(2)(a). 186 Gallinetti J & Loffell J ‘Foster care’ in Davel CJ & Skelton A (eds) Commentary on the Children’s Act (2010) 13. 187 In this regard, the CRC Committee recommends that organisations in charge of the foster placement of children conduct the necessary training of potentially suitable families to ensure the provision of proper care for children with disabilities. CRC Committee, GC No. 9 (2006), para 46.
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Despite South Africa’s relatively advanced provisions aimed at regulating foster care, the
country has faced significant challenges due to the unprecedented increase in children placed
in foster care over the years as a result of high levels of HIV AIDS and the subsequent rise in
the number of orphaned children.188 The increase in the number of children in foster care and
the added stress on the care and protection system are also attributable to discrepancies between
the Foster Care Grant (FCG) and Child Support Grant (CSG), with the former being the more
favoured grant due to its higher monetary value.189 This has resulted in an overloaded foster
care system: in 2010, 123,000 foster care orders lapsed partly due to the substantial number of
extension applications.190 A court order allowing the reinstatement of the lapsed orders was
obtained by the Centre for Child Law from the North Gauteng High Court.191
Since then, the government has taken some positive steps to divert foster carers who are
relatives of the child from entering the formal care system, steps that include increasing the
amount of the CSG.192 It has been argued that it is crucial to increase the value of the ‘top up’
to further divert relatives caring for a child from the formal foster system.193 There has also
been a push for the government to amend the Children’s Act to differentiate between foster
care and kinship care to ensure that the foster care system is not overloaded by relatives seeking
the FCG.194 These initiatives are crucial for ensuring that the most vulnerable children
including children with disabilities who are genuinely deprived of their family environment
188 Skelton A ‘Kinship care and cash grants – South Africa’ in Atkin B The International Survey of Family Law (2012) 336. 189 Skelton (2012) 336. 190 Skelton (2013) 609. 191 This order allowed for the administrative extension of foster care orders until the end of 2014, or the amendment of the Children’s Act. Centre for Child Law v Minister of Social Development (North Gauteng High Court) unreported case no 21726/11 (order granted 7 April 2011 as cited in Skelton in Currie (2013) 609. 192 Alternate Report Coalition – Children’s Rights South Africa ’Supplementary submissions to the United Nations Committee on the Rights of the Child following the Government of South Africa’s written replies to the list of issues’ (2016), para 35 available at http://bit.ly/2T2OQ0z (accessed 24 March 2018) (hereafter ARC-CRSA (2016)) 193 ARC-CRSA (2016) para 65. 194 ARC-CRSA (2016) para 67.
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and without any existing or willing extended family to care for them are provided with
alternative care and additional support for their foster caregivers in the form of a grant.
In addition, cluster foster care has been introduced in the Children’s Act as one form of
alternative care and is envisaged as a means towards deinstitutionalisation, as it would allow
more children to be cared in their communities.195 The Children’s Act states that more than six
children can be placed in foster care in terms of a registered cluster foster care scheme.196 As
discussed in Chapter 3, the insertion of the phrase ‘in accordance with their national laws’ and
the non-exhaustive nature of the list of alternative care forms provided in article 20 of the CRC
reflect the acknowledgement that countries the world over employ different forms alternative
care for children who cannot be cared for by their own parents.197 The introduction of a new
kind of alternative care in the form of cluster care is thus commendable; nonetheless, it has
been reported that cluster foster care schemes are being manipulated to bypass the required
registration process applicable to CYCCs.198 The lack of provision in either the Children’s Act
or the regulations specifying how such schemes should operate may open the door for them to
‘operate as unregistered CYCCs without having to meet the norms and standards required for
CYCCs’.199 It has been pointed out that the provisions pertaining to cluster foster care as they
stand in the Children’s Act ‘adapt foster care from being conceptualised as a family- or
195 Cluster foster care was introduced to respond to the growing number of children in need of alternative care in South Africa. Skelton (2013) 608; Jamieson (2014) 228. 196 Section 185(2) of the Children’s Act. 197 Article 20(2) of the CRC reads as follows: ‘States Parties shall in accordance with their national laws ensure alternative care for such a child’. See s 3(7)(3) of Chapter 3. 198 Gallinetti & Loffell (2010) 17. 199 Alternate Report Coalition – Child Rights South Africa ‘Alternate report to the UN Committee on the Rights of the Child in response to South Africa’s combined 2nd, 3rd and 4th periodic country report on the UN Convention on the Rights of the Child’ (2015) available at http://bit.ly/36vbRgJ (accessed 11 June 2017), para 133.
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household-based intervention, to one which more closely approximates a residential care-type
setting’.200
Moreover there have been concerns regarding the fact that under the cluster foster care scheme,
caregivers are paid to provide care for children, which raises the question of whether this aspect
of the arrangement would change the nature of care from ‘parental or family care’ towards
institutional care. It has been argued too that this setup is not in the best interests of the child
because it does not promote the continuity of care that foster care is supposed to provide.201
4.3.5.2 Child and Youth Care Centre
A Child and Youth Care Centre (CYCC) is another alternative care option provided in the
Children’s Act for children considered to be in need of care and protection.202 It is a new form
of residential care introduced by the Act.203 A CYYC is defined as ‘a facility for the provision
of residential care to more than six children outside of the family environment’.204 The term
CYCC is used to avoid labelling facilities and thus to prevent ‘stigmatisation’ of children
placed in certain facilities.205
Different forms of placement in CYCCs for children considered to be in need of care and
protection are envisaged.206 Each placement centre may be registered to provide specific
200 Meintjes H, Moses S, Berry L, et al. Home Truths: The Phenomenon of Residential Care for Children in a Time of AIDs (2007) 14; Gallinetti & Loffell (2009) 18. 201 Proudlock P, Mentjies H, & Moses S Children’s Institute submission on the draft Regulations to the Children’s Act 38 of 2005 (2008)14–5. 202 See Chapter 13 of the Children’s Act. CYCC is the umbrella term for all children's homes, places of safety, schools of industry, reform schools and secure-care facilities. CYCCs do not include facilities where children are cared for with the consent of their parents, such as partial care facilities, drop-in centres, boarding schools or other residential facilities attached to schools. Similarly, children in correctional facilities and prisons managed by the Department of Correctional Services are not legally regarded as CYCCs. Section 191(a)–(e). Proudlock P & Jamieson L Guide to the Children's Act no 38 of 2005 (2008). 203 Skelton A ‘Child and youth care centres’ in Davel C & Skelton A (eds) Commentary on the Children's Act (2010) 7. 204 Section 191(1). 205 Boezaart T & Skelton A ‘From pillar to post: Legal solutions for children with debilitating conduct disorder’ in Grobbelaar-du Plessis I & Van Reenen T (eds) Aspects of Disability Law in Africa (2011) 125; Matthias & Zaal (2009) 28–9. 206 Section 156 of Children’s Act.
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programmes.207 In addition to the residential care programmes, CYCCS may also provide the
‘appropriate care and development’ of children with disabilities and therapeutic programmes
appropriate to children’s developmental and other needs.208 This indicates that CYCCs are
envisaged to provide for more than children’s basic physical needs. However, the choice of
wording in this regard, that is, ‘may’ in lieu of ‘should’, is permissive and does not impose a
strong obligation on the government to ensure that children with disabilities are provided with
appropriate care and therapeutic and developmental services.
The court is allowed to order the placement of a child in a ‘facility’ for the care of children
with disabilities if it finds that a child who is in need of care and protection has a physical or
mental disability or that it is in the best interests of the child to be cared for in such a facility.209
It has been argued that the aim of this sub-section is to ensure the availability of ‘facilities’ that
are equipped to provide ‘appropriate therapeutic programmes designed to meet the special
needs’ of children.210 However, this provision in its present condition suggests that CYCCs for
children with disabilities are separate from CYCCs for other children. In this regard, the Act
shows elements of the medical model of disability, a model that relies on an isolated approach
in providing services to children with disabilities rather than providing a range of level of
support and services within an inclusive system as envisaged in the CRPD.211
207 Skelton A ‘Child and youth care centres’ in Davel C & Skelton A (eds) Commentary on the Children's Act (2010) 7. In terms of section 191(3), these programmes include ‘(a) the provision of appropriate care and development of children with disabilities or chronic illnesses; (b) therapeutic and developmental programme; (c) the treatment of children for addiction to dependence-producing substances; (d) a programme for the treatment of children with a psychiatric condition; (e) a programme to assist a person with the transition when leaving a child and youth care centre after reaching the age of 18; or (f) any other service that may be prescribed’. 208 Emphasis added. Section 191(3)(a) and (b) of the Children’s Act. 209 Section 156(g)(i) of the Children’s Act. 210 Boezaart (2011) 276. 211 While the CRC and the ACRWC allow for institutional care to be provided as a measure of last resort, the CRPD requires that alternative care for children with disabilities deprived of their family environment be provided within the extended family or, when that is not possible, within the community in a family setting. See art 20(3) of the CRC, art 25(2)(a) of the ACRWC and art 23(5) of the CRPD. See also s 3(7)(4) of Chapter 3 for a detailed analysis of the right to alternative care of children with disabilities in the CRPD. The placement of children with disabilities in special service centres is also one of the concerns raised by the CRPD Committee’s Concluding Observations to South Africa’s initial state report, on the ground that it is based on long-term institutionalisation.
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In respect of the relative desirability of the alternative care options in the standards, in particular
the CRC and ACRWC, priority is given to ‘family-based’ or ‘family-like’ alternatives for
children without their family environment, with institutional care being considered only as a
measure of last resort.212 This obligation is more clearly stated in the Children’s Act, where the
court may consider and order the placement in a CYCC of a child in need of care and protection
only if another option is not appropriate.213 This provision is particularly significant for
children with disabilities, who are prone to being routinely placed in institutional care, in that
it promotes their placement in a family environment in accordance with the obligations set out
in international standards.214 The Children’s Act further mandates that a child not remain in a
registered CYCC for a period longer than six months without an order from the court.215 This
denotes that placement in a CYCC is envisaged as a short-term placement pending a better and
longer-term care option for a particular child.216 It is possible, however, that such placement
could be a long-term arrangement and that a court order to this effect could be made. In addition
to requiring that a child be placed in alternative care for as short a period as possible, the Act
requires that efforts be made to reunify the child and parent or caregiver.217 This serves as a
strong accountability tool to ensure that children for whom reunification with the family is
The Committee expressed concern that such special service centres lacked adequately trained personnel and are located in areas remote from families and communities. CRPD Committee Concluding Observations: South Africa (UN Doc. CRPD/C/ZAF/CO/1, 2018), para 12(c). 212 See s 3(7)(3) of Chapter 3. 213 Section 158(1) of the Children’s Act. 214 The CRC and ACRWC require that institutional care be a measure of last resort for children who are temporarily or permanently deprived of their family environment. The CRPD strengthens the protection of children with disabilities in alternative care measures by requiring that alternative care that is family-based be provided to children with disabilities who cannot live with their families. While the CRC and ACRWC allow for institutional care to be provided as a measure of last resort, the CRPD insists that alternative care for children with disabilities deprived of their family environment be provided within the extended family or, when that is not possible, within the community in a family setting. See art 20(3) of the CRC, art 25(2)(a) of the ACRWC and art 23(5) of the CRPD. See also s 3(7)(4) of Chapter 3, for a detailed analysis of the right to alternative care of children with disabilities in the CRPD. 215 Section 167(2) of the Children’s Act. 216 Zaal N & Matthias C ‘Alternative care’ in Davel CJ & Skelton A (eds) Commentary on the Children’s Act (2010) 11–4. 217 Section 157(1)(b)(ii).
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possible and appropriate are provided with such services.218 One potential departure from the
requirement of the UN Guidelines is that the Children’s Act does not include a provision that
requires the gradual elimination of such institutions.
The adequacy of CYCCs in meeting the needs of children with disabilities was put to test in
Centre for Child Law v MEC Health and Social Development, Gauteng,219 where the applicant
had to apply for a curator ad litem in a case of two boys with a debilitating conduct disorder
for whom suitable accommodation could not be found after multiple placements in CYCCs as
well as in mental health care. A curators’ report was submitted to the North Gauteng High
Court, describing how the children were failed by the state after having been removed from
their families and placed in CYCCs.220 The case of A and G was handled by the same curator
and revealed that CYCCs are ill-equipped to provide appropriate care to children with conduct
disorder.221 The curator concluded that the system violated a number of constitutional rights of
A and G, including the right to equality (section 9); the right to dignity (section 10); the right
to appropriate alternative care (section 28(1)(b); the right to social services (section 28(1)(c);
and the best interests of the child (section 28(2).222 A similar trend can be observed in a case
lodged by the Centre for Child Law in 2010 against the departments of Social Development,
Health and Education involving a 10-year-old girl in similar circumstances.223
218 Jamieson (2014) 226. 219 Centre for Child Law v MEC Health and Social Development, Gauteng North Gauteng High Court unreported case no 37850/2010. An elaborate discussion of the two cases can be found in Boezaart & Skelton in Grobbelaar-du Plessis & Van Reenen (eds) (2011) 107–11. 220 Boezaart & Skelton (2011) 107–11. 221 Boezaart & Skelton (2011) 107–11. 222 Hansungule Z A Case for for the Socio-Economic Rights of Children with Disabilities in South Africa: Protection of the Right to Basic Education and the Right to Social Services (unpublished LLM thesis, University of Pretoria, 2016) 125. 223 The Centre for Child Law and Departments of Social Development, Education and Health reached a settlement in 2018 which entailed that the respondents would develop an intersectoral policy and implementation plan, costed and budgeted for, and with the final phase of the settlement entailing the delivery of a final report for submission to the cabinet. In addition, the settlement entails the implementation of interim measures to ensure that children with severe disruptive behaviour disorder are provided with appropriate services. Centre for Child Law v MEC for Social Development and Others, unreported, GP case no 73662/16 (4 October 2016) (Centre for Child Law
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These cases indicate that while in the interim there is compliance with international obligations,
there is a lack of due diligence in South Africa in that the state does not address all the specific
needs of children who are placed in CYCCs. It is also notable that there was no effort on the
part of the state to explore family-based alternative care options for any of the children in the
above cases. In fact, it has been argued in relation to the case of A and G that there is a need to
expand ‘specialised’ facilities to provide care for children with conduct disorder.224 Thus,
practice shows a clear deviation from the obligations set out in international as well as national
standards, which will be discussed in the following sections.225
4.3.6 The obligation to undertake periodic review of placement in alternative care
The Children’s Act requires regular review of alternative care placements. Generally, a court
order placing the child in alternative care expires after two years (or earlier) and has to be
reviewed with the possibility of extension for another two years.226 However, placement of
children with disabilities in CYCCs in terms of section 156(1)(g) is not made subject to
supervision and reunification services. This lack of specificity goes against the obligation
placed upon the state under the CRC to ensure that the placement of children, including children
with disabilities, in alternative care is regularly reviewed.227 Notwithstanding these provisions
aimed at ensuring the short-term placement of children in CYCCs, some children remain in
care for a long time.228 Lack of monitoring of placements and of necessary intervention may
Supplementary Founding Affidavit - redacted) Boezaart T ‘General Principles’ in Davel C & Skelton A (eds) Commentary on the Children's Act (2010) 25–6. 224 Boezaart & Skelton in Grobbelaar-du Plessis & Van Reenen (eds) (2011) 111. 225 See ss 5(2)(1) – 5(2)(5) of Chapter five of this thesis for further discussions on the challenges in relation to the implementation of the rights of children with disabilities in the context of alternative care in South Africa. 226 Section 159(1)(a) & (b); Jamieson L Children’s Act Guide for Child and Youth Care Workers 2 ed (2013) 98. 227 In s 3(8) of Chapter 3 of this thesis it was established that article 25 of the CRC requires states to carry out periodic review of the placement and situation of children so placed by the authorities for their care, protection or treatment of their physical or mental health. The CRC Committee in its GC No. 9 has reiterated the need for competent authorities to periodically review the alternative care selected for children with disabilities to ensure that the placement is promoting their well-being. CRC Committee, GC No. 9 (2006), para 50. 228 CRC Committee, Consideration of Reports Submitted by States parties under article 44 of the Convention, Second periodic reports of States parties due in 2002, South Africa (UN Doc. CRC/C/ZAF/2, 2015), para 197.
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put children with disabilities in CYCCs at risk of neglect and maltreatment, which are not
uncommon in institutional care settings.
The Ethiopian legislative framework does not include an obligation to periodically review the
placement of children in alternative care. However, there are provisions to this effect in the
National Guidelines, which will be discussed in the following sections.229
4.3.7 Provisions dedicated to the rights of children with disabilities
An assessment of the adequacy of the legislative frameworks of South Africa and Ethiopia in
relation to the right to alternative care of children with disabilities would not be complete
without examining how the frameworks provide for the rights of children with disabilities
specifically. The South African Constitution is silent on the rights of persons/children with
disabilities. Although the Constitution provides for the rights of children in section 28, no
explicit reference to children with disabilities is made in this section.230 It has been argued that
the lack of any substantive constitutional provision on the rights of persons/children with
disabilities reflects the position in international law that presumes the adequacy of the
enforcement of non-discrimination with regard to disability issues.231 It is also noteworthy that
South Africa does not have separate disability legislation.
In the case of Ethiopia, the Constitution, although not referring directly to children with
disabilities, imposes a duty on the state to allocate, within its available means, resources to
provide rehabilitation and assistance to persons with disabilities.232 The entitlement to
assistance is subject to the availability of resources, which raises the question of whether
229 See s 4(4)(2) of this Chapter. 230 Chilemba (2014) 198. 231 Chilemba (2014)198–99. 232 Article 41(5) the Ethiopian Constitution reads as follows: ‘The State shall, within available means, allocate resources to provide rehabilitation and assistance to the physically and mentally disabled, the aged, and to children who are left without parents or guardian.’
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suitable assistance can be given under such limitations.233 Moreover, this provision speaks only
of the duty-bearer, not the rights-holder, which is poor crafting in that it does not give rise to a
right and undermines the provision’s justiciability.234
In respect of South Africa, despite the Constitution’s lack of a substantive provision on the
rights of children with disabilities, the Children’s Act makes several reference to children with
disabilities. From the outset, the Children’s Act, as one of its key principles, makes it
mandatory that ‘all proceedings, actions or decisions in a matter concerning a child must
‘recognise a child’s disability and create an enabling environment’ to respond to the special
needs of children with disabilities.235 The Act’s emphasis on creating an enabling environment
is commendable, and is a recognition of the external barriers that children with disabilities face
in society.
The Children’s Act goes a step further to protect children with disabilities by dedicating section
11 to their rights. This section requires that, in any matter concerning children with disabilities,
due consideration be given to providing the child with parental, family or special care whenever
appropriate;236 to facilitating the participation of the child in social, cultural, religious and
educational activities, considering any special needs the child may have;237 to providing the
child with conditions that ensure dignity, promote self-reliance and facilitate active
participation in the community;238 and to providing the child and the child’s caregiver with the
necessary support services.239
233 Article 41(5) of the Ethiopian Constitution. See also Phillips (2011) 173. 234 Mayessa (2013) 55. 235 Section 6(2)(f) of the Children’s Act. References to equality for children with disabilities are found in ss 2, 6, 7, 11 and 42 and in most of the provisioning and strategy clauses in each of the service chapters. Proudlock P & Jamieson L ‘The Children's Act: providing a strong legislative foundation for a developmental approach to child care and protection’ in Proudlock P, Dutschke M, Jamieson L, et al (eds) South African Child Gauge 2007/2008 (2008) 38. 236 Children’s Act, s 11(a). 237 Children’s Act, s 11(b). 238 Children’s Act, s 11(c). 239 Children’s Act, s 11(d).
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These rights are particularly relevant to the alternative care of children with disabilities. The
obligation to facilitate conditions that allow children with disabilities to live in dignity, become
self-reliant and actively participate in the community is in line with the approach taken by the
provisions dedicated to the rights of children with disabilities in the CRC and ACRWC.240 As
has been argued in Chapter 3, in the context of alternative care this obligation entails the
provision of family-based alternative care, as institutional care more often than not does not
afford an enabling environment in which a child with a disability can be self-reliant and live in
dignity.241 Moreover, as stated by the CRPD Committee, the concept of the right to live in the
community is violated when a child with a disability is placed in institutional care, since this
in effect removes him or her from the community.242 Thus, this subsection is significant in
ensuring that children with disabilities are not removed from the community under the guise
of providing them with alternative care.
The last paragraph offers an added layer of protection to children with disabilities by requiring
the state to provide support to the child as well as the child’s caregivers.243 Some have
interpreted these ‘support services’ as a reference to the Care Dependency Grant (CDG),244
although the terminology suggests that it is not limited to grants.245 However, the phrase ‘due
consideration must be given to’ in section 11 does not impose a strong obligation on the state,
which hence weakens the weight attached to the rights of children with disabilities.
Section 11(1)(a) is more relevant to the subject at hand, as it deals with the care of children
with disabilities. The section entails that due consideration be given to providing a child with
240 See arts 23(1) of the CRC and 13(1) of the ACRWC. 241 See s 3(6) of Chapter 3 this thesis for a discussion of the provisions that are solely dedicated to the rights of children with disabilities in the CRC, CRPD and ACRWC in the context of the alternative care of children with disabilities. 242 CRPD Committee, GC No. 5 (2017), paras 16(c) and 37. 243 Children’s Act, s 11(d). 244 Boezaart (2011) 273. 245 Philpott (2013) 186.
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a disability with parental care, family care and special care as and when appropriate. However,
a difference between section 28(1)(b) of the Constitution and the Children’s Act is that the
latter uses the phrase ‘special care’ in this section rather than ‘appropriate alternative care’,
which is the phrase in the Constitution. It has been argued that the Children’s Act contains
elements of the medical model of disability in that it uses phrases such as ‘special care’ and
‘special needs’ instead of requiring that ‘measures of support’ be provided to children with
disabilities.246 In the context of alternative care, it may be argued that the obligation to provide
‘special care’ could encourage the institutionalisation of children with disabilities when
deprived of their family environment. As discussed in Chapter 3, this is due mainly to the fact
that keeping children with disabilities in separate facilities in the name of ‘special care’ follows
the approach of the medical model of disability, a model that reinforces systems of segregation
under the guise of providing services considered ‘special’ to their needs.247 Despite the use of
phrases that may indicate the medical model of disability, for the most part the Act endorses
the human rights model of disability.248
Under Ethiopian law, the rights of children with disabilities are not explicitly provided in
subsidiary legislation. The medical-based approach is evident in laws such as the Civil Code
and the RFC.249 The RFC contains provisions that allow discrimination on the basis of
disability regarding the family’s rights and undermine the rights of persons with disabilities
246 Chilemba (2014) 193. See, for instance, ss 11(1)(a), 11(1)(b) and 2(h) of the Children’s Act. 247 Section 3(6)(1) of Chapter 3 revealed that art 23 of the CRC largely views children with disabilities through the lens of the medical model of disability, one in which they are regarded as subjects of protection requiring ‘special care’, ‘treatment’ and ‘rehabilitation’ – this leads to a tendency to characterise children with disabilities as persons in need of protection rather as than active holders of rights. The medical model of disability has been used to justify the institutionalisation of persons with disabilities. 248 Chilemba (2014) 194. 249 The use of derogatory terms to refer to persons with disabilities in legislation and policies in Ethiopia is one area of concern raised by the CRPD Committee when reviewing the country’s initial report. The Committee urged the government of Ethiopia to abolish the use of all derogatory terms to refer persons with disabilities and for new legislation and policies to be grounded on the human rights-based model of disability in line with the CPRPD. CRPD Committee Concluding Observation: Ethiopia (UN Doc. CRPD/C/ETH/CO/1, 2016), paras 5, 6 and 49 and 50.
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within the family.250 Similarly, the Civil Code was enacted six decades ago and has not been
harmonised with current notions of the rights of persons with disabilities; as such, it contains
provisions that lack compliance with relevant international standards, which has a negative
impact on the protection of the rights of persons with disabilities.251 For instance, the Code
limits the legal capacity of persons with disabilities by including minority, notorious insanity,
apparent infirmity and judicial interdiction as grounds for incapacity. It makes reference to
insanity as a ground to limit legal capacity where the mental health of a person is questioned
by the society in which he lives or where a court has passed a judgment of judicial interdiction.
The law defines an insane person as ‘one who cannot understand the importance of his actions
as a result of being insufficiently developed, mental disease or senility’.252 In turn, it defines
infirm persons as ‘[d]eaf-mute, blind persons, and other persons’ who are incapable of looking
after themselves or managing their property as a result of a ‘permanent infirmity’, and goes on
to state that such persons ‘may invoke in their favour the provisions of the law which afford
protection to those who are insane’.253 It has been argued that the aim of the provision is to
protect persons with disabilities from others; however, the terminology as well the limitation
of capacity diverge significantly from the purpose and provisions of the CRPD and the human
rights model of disability on which it is founded. It should, however, be acknowledged that at
the time the Code was drafted, critical concepts related to disability issues had not yet fully
emerged. Thus, the fact that the Code pre-dates the CRPD could justify why it does not portray
persons with disabilities in accordance with the human rights model of disability nor reflect the
current understanding of disability. Nonetheless, this does not alleviate the state of its
250 See, for instance, arts 34, 51 and 220 of the RFC. 251 See, for instance, the Civil Code of the Empire of Ethiopia Proclamation No. 165 of 1960 (hereafter Civil Code of Ethiopia), art 339(1). 252 Article 339(1) of the Civil Code of Ethiopia. 253 Article 340 of the Civil Code of Ethiopia.
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obligation to take measures to harmonise its laws and policies with prevailing international
standards.
The effect of the non-compliance of the medical-based approach to disability is evident in the
negative attitudes towards disability that are prevalent in Ethiopian society,254 attitudes that
compound the vulnerabilities children with disabilities face, in particular discrimination on the
basis of both age and disability. The stigmatisation of children with disabilities, coupled with
a medical-based approach evident in the framework, makes it highly likely that children with
disabilities deprived of their family environment will be exposed to the same prejudices and
approach when it comes to their placement and treatment in alternative care. This leads to
discrimination due to lack of respect and dignity while in alternative care and to over-reliance
on institutional care as means to care for children with disabilities.
In view of this, it can be argued that the country’s constitutional provisions and subsidiary
legislation do not reflect the human-rights-based approach and ensure that children with
disabilities enjoy human rights and freedoms on an equal basis with other children.255 The
provision in the Constitution does not bestow rights that children with disabilities can claim
directly, and reflects the medical-based model of disability. The overall legislative framework
views persons with disabilities from a medical perspective, which is in direct contrast with the
254 The abandonment of children with disabilities by parents is often linked to negative societal attitudes towards children with disabilities. Myths abound about the causes of disability, among them being the idea that it is the result of ‘supernatural wrath’. Family Health International/Ethiopia & Children’s Investment Fund Foundation (CIFF) ‘Improving care options for children in Ethiopia through understanding and preventing institutionalisation’ (copy on file with author; unpublished draft report, 2008) 67. 255 The previous chapter in s 3(6) examined provisions dealing solely with the rights of children with disabilities in the CRPD, CRC and ACRWC. These provisions require the state to ensure that children with disabilities have the right to special measures of protection and enjoy a ‘full and decent life’ and ‘in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community’. The CRPD explicitly requires the state to ‘take all the necessary measures to ensure’ that children with disabilities fully enjoy ‘all human rights and freedoms on an equal basis with other children’. For further discussion, see s 3(6)(3)of Chapter 3 of this thesis.
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CRPD. In this regard, the Constitution’s approach to addressing the rights of persons with
disabilities may stem from fact that the Constitution predates the CRPD.
4.4 Other measures
As mentioned, the discussion of legislative measures is accompanied by an examination of
‘other measures’ undertaken by South Africa and Ethiopia – for the purpose of this thesis, these
are defined as non-legislative measures in accordance with article 4 of the CRC. Of the non-
legislative instruments adopted by the South African government, the one most relevant to the
alternative care of children with disabilities is the White Paper on the Rights of Persons with
Disabilities (WPRPD) (2015). In respect of Ethiopia, the National Child Policy (NCP)256 and
the National Guidelines will be discussed, as they have provisions with direct implications for
the alternative care of children in general and children with disabilities in particular.257
4.4.1 South Africa’s White Paper on the Rights of Persons with Disabilities
In relation to policy measures, the WPRPD is South Africa’s disability-specific policy which
updates the Integrated National Disability Strategy but maintains the same policy direction,
namely mainstreaming disability.258 The WPRPD contains nine ‘strategic pillars’, each with a
distinct directive that assigns duty-bearers with the task of eliminating enduring
institutionalised discrimination and exclusion of persons with disabilities.259 Most notably, the
256 Ministry Women, Children and Youth Affairs National Children’s Policy (2017) (hereafter NCP). As stated in Chapter 1 of this thesis, the discussion of policy measures is not exhaustive, as the focus of the thesis is on legislative measures. Hence, instruments such as the National Plan of Action of Persons with Disabilities (NPA) (2012–2021) do not form part of the discussion as they do address issues relevant to the alternative care of children with disabilities. 257 The National Guidelines were developed by the Ministry of Women, now reconstituted as the Ministry of Women, Children and Youth Affairs (MOWCYA), by revising the 2001 Alternative Childcare Guidelines. 258 Department of Social Development White Paper on the Rights of Persons with Disabilities (2015) (hereafter WPRPD) 38. Prior to the adoption of the WPRPD, the Integrated National Disability Strategy served as the main policy document on disability related matters. Government of the Republic of South Africa Integrated National Disability Strategy (1997). 259 These strategic pillars include removing barriers to access and participation; protecting the rights of persons at risk of compounded marginalisation; supporting sustainable integrated community life; promoting and supporting empowerment of persons with disabilities; reducing economic vulnerability and releasing human capital;
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WPRPD incorporates the rights of persons/children with disabilities to live in the community,
which is an element missing in the Children’s Act.
It recognises that persons with disabilities ‘have an equal right to live in the community, with
choices equal to others’ and that measures need to be taken to realise this right.260 It also
recognises the particular vulnerabilities of children with disabilities deprived of family life due
to lack of community-based support services, lack of access to education, and negative beliefs
that children with disabilities are ‘better off in segregated facilities’.261 In accordance with the
CRPD, the WPRPD requires that community-based services be available to persons with
disabilities on an equal basis with others and that services be responsive to their needs in
accordance with the obligations set forth under the CRPD.262 The WPRPD also recognises the
importance of providing children with disabilities with procedural and age-appropriate to
facilitate their right to access to justice.263 It further reiterates article 7(3) of the CRPD which
requires children with disabilities to be provided with disability and age-appropriate assistance
in order to ensure their right to participate in matters affecting them.264
It can be observed that the WPRPD fills the gaps in the legislative framework to some extent.
However, the implication of this is that the provisions in respect of children with disabilities
are scattered across a range of legislative and policy documents.265 Moreover, although the
strengthening the representative voice of persons with disabilities; building a disability-equitable state machinery; promoting international co-operation; and monitoring and evaluation. See WPRPD Part 6, 48–123. 260 WPRPD s 6(3) 70. 261 To this end, as part of its directives, it requires that information on available services be provided to all parents and caregivers of children with disabilities, including ‘information on parental counselling and peer support services, respite care services, therapeutic, educational and economic programmes, as well as the establishment of a disability service and information portal that provides access to the information’. WPRPD, s 6(3)(1)(2), 74–76. 262 The directives require the development of a ‘sustainable community-based system for personal assistance to support independent living within the community for persons with disabilities’. WPRPD, section 6(3)(1)(4) 77. 263 WPRPD, s 6(2)(1)(3) 65. 264 WPRPD, s 6(2) 61. 265 Alternate Report Coalition – Child Rights South Africa ‘Complementary report to the African Committee of Experts: A response to South Africa’s Second Country Report to the African Committee of Experts on the Rights and Welfare of the Child’ (2017) (hereafter ARC – CRSA (2017)) available at http://bit.ly/36yl73I (accessed 3 April 2018), para 67.
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adoption of the WPRPD is a step in the right direction in promoting and protecting the rights
of children with disabilities, it does not adequately address all aspects of the rights of children
with disabilities. More often than not policies are restricted to the educational rights of children
with disabilities, thus neglecting other equally important rights recognised in the CRPD, CRC
and ACRWC, such as the rights of children with disabilities not to be separated from their
families on the basis of disability and the right to be provided with alternative care within the
community in a family setting. Moreover, although the WPRPD recognises that children with
disabilities are vulnerable to being deprived of their family environment and that there are
prevention strategies to this end,266 it does not address provisioning in relation to children with
disabilities who are already deprived of their family environment.
Another problem with providing for the rights of children with disabilities in policies is that
policies are non-binding in nature and cannot be relied on to hold the government accountable
in its implementation measures and allocation of resources in effectuating them.267 Some
scholars have expressed concern that the lack of legislation that specifically addresses the rights
of persons/children with disabilities has hindered the realisation of the rights of persons with
disabilities and children with disabilities.268 Conversely, some cite the Children’s Act’s
provisions on children with disabilities as a good example of how the rights of a particular
group (in this case children with disabilities) can be incorporated in legislation successfully
without the need for separate legislation.269 It has also been pointed out that having separate
legislation on disability does not necessarily mean it would cover the rights guaranteed in the
266 See s 6(3)(1)(2) 74 of the WPRPD. 267 ARC – CRSA (2017), para 67. 268 Heap M Lorenzo T & Thomas J ‘We've moved away from disability as a health issue, it's a human rights issue': reflecting on 10 years of the right to equality in South Africa (2009) 24(7) Disability and Society 857–868 as cited in Philpott SC Realising the Right of Children with Disabilities to Early Childhood Development in South Africa (unpublished LLD thesis, University of the Western Cape, 2013) 177. 269 Philpott (2013) 177.
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CRPD.270 In the same vein, it has been argued that separate legislation for persons/children
with disabilities would reinforce their marginalisation and the perception that they constitute
separate groups in society.271 These opposing views reflect the fact that there is no one single
method for ensuring that the rights of children with disabilities are fully recognised at the
national level. However, the goal should be ensuring that all the rights of children with
disabilities, including the right to be provided with alternative care within the wider family or
within the community in a family setting and the right to live in the community, as guaranteed
in the CRPD, are incorporated into national laws and are enforceable.
4.4.2 The National Alternative Care Guidelines of Ethiopia
The National Alternative Care Guidelines of Ethiopia (2009) have particular importance to the
alternative care of children with disabilities as they establish minimum standards for the
provision of alternative care services by both the state and NGOs in Ethiopia.272 The Guidelines
are instructive as they cover issues pertaining to eligibility, recruitment, placement, assessment,
and training, monitoring and reporting.273 The National Guidelines will be discussed to show
the value that they add in meeting the need for the national legislative and policy position to
comply with international standards.
The National Guidelines recognise a range of alternative care options for orphans and
vulnerable children (OVC) in the continuum of care including community-based child care,
reunification and reintegration, foster placement,274 adoption275 and institutional care.276 The
270 Chilemba (2014) 211. 271 Philpott (2013) 177. 272 National Guidelines, 6; UNICEF ‘Alternative childcare’ Thematic Briefing Note (2013) 3 available at https://uni.cf/2MYtA8s (accessed 02 May 2015). 273 See generally the National Guidelines. 274 National Guidelines, 28–38. 275 National Guidelines, 38–47. 276 National Guidelines, 47–64.
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part dealing with intercountry adoption has become inapplicable, however, following the ban
on intercountry adoption with the enactment of Proclamation No. 1070/2018.277
The National Guidelines present community-based child care as a form of alternative care that
provides the necessary care and support to children in their own community in an environment
which is familiar to them.278 Children with disabilities are among the groups of children who
are considered to be eligible to be cared for in a community-based child care programme.279
This is in line with obligations set out in the CRPD which require the state to provide alternative
care for children with disabilities within the community, in a family setting.280
Foster family care is defined in the National Guidelines as
a planned, goal directed alternative family care where an unaccompanied child is temporarily placed and gets adequate physical, emotional and psycho-social care and protection until he/she is either reunified with his/her biological parent/s or placed within another type of permanent care or institution.281
Foster care is considered in National Guidelines as a preferred alternative care option for
children and one that offers the necessary attention, care and continuity as well as one that
provides a better opportunity than institutional care for the child’s subsequent integration into
the community.282 From the definition of foster family care in the National Alternative Care
Guidelines, it is not clear whether foster care has to be ordered by a competent administrative
277 Assefa M The Ban on Intercountry Adoption in Ethiopia (unpublished LLM thesis, Addis Ababa University, 2018) 38. 278 See National Guidelines, 14. 279 National Guidelines, 15. 280 Section 3(7)(4) of Chapter 3 established that the CRPD requires alternative care for children with disabilities deprived of their family environment to be provided within the extended family or, when that is not possible, within the community in a family setting. Kinship care, sponsored care, child-headed households, group homes, and foster family care are alternatives placed under the community-based care. Even though the recognition of child-headed households is in conformity with UN Guidelines for the Alternative Care of Children, it is in contradiction to the RFC, which does not consider the minor qualified to hold guardianship over another child. A group home is described as the placement of OVCs in a community-based group home, whereby a group of six to eight children is placed under one roof with a surrogate mother assigned to it as caretaker. National Guidelines, 19. 281 National Guidelines, 10. 282 National Guidelines, 28.
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or judicial authority in accordance with the UN Guidelines.283 What is known is that the foster
family care organisation, described as an ‘organisation which is registered and licensed by the
accredited governmental body to implement foster family care placement’, is responsible for
conducting an assessment and screening of the potential foster family before placing the child
in such care.284 As noted in Chapter 2, although the ‘competent authority’ is usually the state,
it could also be NGO in cases where the formal child protection system is at an early stage of
development.285 In terms of the National Guidelines, the ‘competent authority’ responsible for
the assessment and screening as well as the placement of children with disabilities in foster
care appears to be the foster family organisation. Hence, it appears that in relation to family-
based alternative care such as foster care, neither the National Guidelines nor any law explicitly
requires the determination of the placement of a child with a disability to be preceded by
judicial or government authority.286 Given that the majority of alternative care services
including foster care services are not operated or funded by the government, this raises the
question of the extent to which foster family organisations can be entrusted with ensuring that
the rights of children with disabilities are protected in foster care placement measures as well
as assessment and screening processes.
283 According to the UN Guidelines, para 29(c)(ii), foster care is defined as including ‘situations where children are placed by a competent authority for the purpose of alternative care in the domestic environment of a family other than the children’s own family that has been selected, qualified, approved and supervised for providing such care’. 284 See National Guidelines, 33–4. 285 See s 2(5)(1) of Chapter 2 of this thesis. Petrowski N, Cappa C & Gross P ‘Estimating the number of children in informal alternative care: challenges and results’ (2017) 83 Child and Abuse Neglect, The International Journal 390. 286 The National Guidelines do not contain provisions that require the determination of form alternative care for children and their subsequent placement to be done by a judicial or government administrative body. Rather, the Guidelines require that in respect of foster care, foster family care organisations are allowed to recruit children to be placed in foster care; the assessment and screening before the placement are also to be done by the same organisation. See National Guidelines, 39 and 33–4. However, the National Guidelines prohibit placing children in a foster family against the relevant authority’s regulation, although it is not clear to which regulation the reference is made. National Guidelines, 31.
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On a positive note, the National Guidelines expressly recognise children with disabilities
among the categories of children who are considered eligible for foster care placement.287 This
is significant for children with disabilities in need of alternative care as it gives them the
opportunity to be cared for in a family-based alternative care rather than institutional care
which is in line with the standards discussed in Chapter 3.288 Foster family care organisations
are required to conduct the appropriate training of foster families on issues pertaining to the
care and development of children.289 However, there is no requirement to ensure that caregivers
are trained to respond to children with disabilities, including children with intellectual
disabilities.290 The eligibility criteria and the conditions for matching a child with potential
foster parents fall short of specifying any training or skills that the foster carers should possess
to care for children.
Again on a positive note, in accordance with the UN Guidelines, the National Guidelines
require counselling services to be provided to the child and potential foster carers to prepare
both parties psychologically and ensure a positive placement outcome is provided by the
National Guidelines.291 However, there is no emphasis on the importance of such counselling
to be carried out on an ongoing basis. The Guidelines are also silent on the requirements of
international standards in respect of the pre-identification of potential foster carers in each
community, which could minimise the possibility of children with disabilities finding potential
foster families in the absence of such system of preparation.292
287 National Guidelines, 32. 288 See s 3(7)(4) of Chapter 3 of this thesis. 289 See National Guidelines, 36. 290 The UN Guidelines require alternative care providers to ensure that caregivers of children with disabilities are equipped to respond to their needs. UN Guidelines, para 117. 291 National Guidelines, 36. The UN Guidelines require ‘special preparation, support and counselling services for foster carers should be developed and made available to carers at regular intervals, before, during and after the placement’. UN Guidelines, para 120. 292 The UN Guidelines emphasise the need to identify potential foster carers in each community. UN Guidelines, para 119.
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Furthermore, in respect of institutional care in the National Guidelines, it is required that such
placement be considered only as a last and short-term alternative once all other family-based
options are exhausted.293 In pursuit of the objective of ensuring that the child is institutionalised
for the shortest time, the National Guidelines place responsibility on orphanages to seek other
child-care alternatives such as community-based child care, reunification, reintegration, foster
care and adoption.294
Under the National Guidelines, a child can be placed in institutional care only once his or her
eligibility is approved and the ‘relevant authority’ requests the admission of such a child.295
The ‘relevant authority’ is described as a government institution ‘legally mandated to facilitate,
certify, monitor and evaluate child-care programs’.296 This provision is important since, unlike
the provisions regarding foster care, where the involvement of the government is minimal, it
serves as a gatekeeping mechanism to ensure that children are not placed in institutions
unnecessarily. One shortcoming could be that the Guidelines do not stress the need for an
adequate number of carers to ensure individualised attention to children and the formation of
lasting attachments with caregivers.297
The National Guidelines require the ‘relevant Regional authority’ to ‘follow-up, monitor and
evaluate the care offered to a child placed in institutional care’.298 However, they do not specify
the frequency with which such follow-up and monitoring ought to occur.299 Such specificity is
293 National Guidelines, 47. 294 National Guidelines, 49. 295 National Guidelines, 49. 296 National Guidelines, 10. 297 One of the requirements of the UN Guidelines is for states to ‘ensure that there are sufficient carers in residential care settings to allow individualised attention and to give the child, where appropriate, the opportunity to bond with a specific carer. Carers should also be deployed within the care setting in such a way as to implement effectively its aims and objectives and ensure child protection.’ UN Guidelines, para 126. 298 National Guidelines, 50. 299 The UN Guidelines require the placement of a child in alternative care to be subject ‘regular and thorough review’, and encourage the review to take place, if possible, every three months to ensure the appropriateness of the care and treatment provided to the child and the necessity of placement under such circumstances. UN Guidelines, para 67.
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necessary to ensure that the placement of a child as well as the setting in which the child is
placed are assessed against the best interests of each child on a regular basis to ensure that the
placement remains suitable to the individual child.
The National Guidelines also adopt the four general principles of the CRC, including child
participation, as among their guiding principles.300 Child-care institutions are expected to
ensure that the participation of children is given due regard in accordance with their ‘age,
mental and physical levels of maturity’ in all matters affecting them and to design ways to
enhance their participation within the community.301 In the previous chapter, it was established
that these requirements should not be used to side-line children with disabilities who cannot
communicate in conventional ways but only through other means such as body language; such
children may need further support to be able to express their views effectively.302 The
Guidelines also require that the child be consulted and involved in the process of foster care
placement in a manner appropriate to his or her age and degree of maturity.303 However, the
Guidelines do not make reference to the needs of children with disabilities in relation to
participation, nor do they require them to be equipped with the necessary communication
modes to facilitate expression of their views in accordance with the CRPD.304 The National
Guidelines are also silent on the need to consult the child at every stage of the determination
of alternative care placement in accordance with international standards.305
300 National Guidelines, 7. 301 National Guidelines, 50 and 63. 302 Section 3(5)(4) of Chapter 3 noted that the phrase ‘who is capable of communicating his or her views’ in article 4(2) of the ACRWC is limiting in that this ability may relate to the ability to communicate in conventional ways such as writing and speaking and be used to marginalise children who cannot communicate in these ways. 303 National Guidelines, 29. Section 3(5)(4) of Chapter 3 established that respect for the principle of child participation is crucial at every stages of a child’s involvement with the care system, in particular regarding the determination of the most appropriate placement for the child and the planning and review of the placement. 304 See section 3(6)(3) of Chapter 3 of this thesis, where it is argued that article 7(3) of the CRPD places a stricter obligation on states than other instruments by requiring the views of children with disabilities to be heard on an equal basis with others in accordance with their age and maturity and for them to be provided with age- and disability-appropriate assistance in order to realise the right. 305 The UN Guidelines require the child to be consulted during the decision-making process of the determination of the most appropriate form of alternative care. UN Guidelines, para 57; see also ss 3(5)(4) and 3(6)(3) of Chapter
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4.4.3 Ethiopia’s National Children’s Policy
In addition to the National Guidelines, the NCP (2017) contains provisions relevant to the
alternative care of children with disabilities. From the outset, the NCP places emphasis on
strengthening domestic initiatives to respond to the situation of orphaned and vulnerable
children and children who are not living with their parents.306 The Policy does not endorse
intercountry adoption as a potential form of alternative care for children deprived of their
family environment, which in any case has been banned in 2018. To harmonise the NCP with
the RFC, Proclamation No. 1070/2018 was enacted following the ban on intercountry adoption
and repealed certain provisions of the RFC.307 The ban has drawn criticism from scholars in
view of the availability and sufficiency of domestic alternatives to tackle the challenges that
OVC face.308 The impact of the ban on children who are less likely to find family-based
alternatives domestically, including children with disabilities and children with developmental
delays and nutritional deficiencies, is one area of concern where the need for further scrutiny
has been underlined.309
Moreover, the NCP does not endorse institutional care, and pledges to facilitate a favourable
environment for the ‘reintegration and reunification of children in institutional care’ with their
parents, extended family and community.310 This complies with the obligations under the
CRPD, which also does not prescribe institutional care as a potential alternative means of care
3 of this thesis for detailed discussion of the provision of child participation in the context of alternative care in the CRC, ACRWC and CRPD. 306 The NCP provides domestic family-based alternatives to children such as domestic adoption, foster care, community-based programmes, and reunification and reintegration alternative care programmes as part of the specific objectives and major issues of the policy. See NCP, 13 and 19–20. 307 The RFC, 2000, arts 210, 222 and 227, Chapter 10, Proclamation No. 213/2000, Neg. Gaz. 6th year, extraordinary issue no. 1, as amended, RFC (amendment) proclamation, 2018, Preamble. In order to harmonise the NCP with the RFC, the Proclamation No. 1070/2018 was enacted following the ban of intercountry adoption as a form of alternative care for children. The Policy further refers to intercountry adoption as having various drawbacks, among them being that it fails to provide children with the necessary care and that it exposes them to psychological and social problems that result in identity crisis. NCP, 7 and 19–20. 308 Assefa (2018) 6–7. 309 Assefa (2018) 6–7. 310 See NCP, 19.
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for children with disabilities.311 However, the policy is silent on children for whom
reintegration and reunification with family is not feasible, hence overlooking a particular
subgroup of children with disabilities who are already in institutional care. It is submitted that
this omission, coupled with the ban on intercountry adoption, may mean there is one less
family-based alternative care option for children with disabilities – given the stigma attached
to them, and the discrimination they experience, in the Ethiopian context, domestic adoption
might not be a realistic alternative care option for this group of children. This has been
exacerbated by the restriction on CSOs seeking to obtain funds from abroad to provide quality
care for children in institutional care.312 It is anticipated, however, that this issue will improve
with the newly adopted CSO proclamation that lifts the financing restriction.313
From the discussion above, it can be observed that most of the provisions for the alternative
care of children in general and children with disabilities in particular are found in the National
Guidelines and NCP. Although these instruments for the most part comply with international
standards, they are not comprehensive enough to ensure quality and set standards of alternative
care services.314 It has also been argued that, because the National Guidelines do not have the
force of law, they lack the legal authority to ensure compliance and accountability.315
4.4.4 General Observations
From the foregoing discussions, it can be observed that the policy framework contains more
detailed provisions than the provisions in the legislative framework, albeit that the provisions
in the National Guidelines could have been formulated to take into account the specific
311 CRPD, art 23(5). 312Assefa (2018) 59. 313 FDRE, Organizations of Civil Societies Proclamation No. 1113/2019, art 63(1)(c) reads as follows: ‘Any organization shall have the right to solicit, receive and utilise funds from any legal source to attain its objective.’ In terms of the former CSO Proclamation, resident charities and societies and foreign charities were restricted from taking part in activities pertaining to children’s rights and disability rights, among other things. This restriction extended to local NGOs if they received more than 10 per cent of their funding from foreign sources. 314 UNICEF ‘Alternative childcare’ Thematic Briefing Note (2013) 3. 315 UNICEF ‘Alternative childcare’ Thematic Briefing Note (2013) 3.
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vulnerabilities of children with disabilities. However, as noted already, the main shortcoming
in providing for the rights of children through policies and guidelines is that these instruments
do not impose any legal obligations on the state due to their non-binding nature. This poses a
challenge for their enforcement and raises the issue of lack of accountability as the state is not
legally obligated to comply with them. Thus, it is submitted that the provisions in National
Guidelines, although relatively robust and comprehensive, lack the legal basis needed for their
proper enforcement. Although these provisions aid recognition of international human rights
obligations in regard to children with disabilities in alternative care, they lack the legal
authority to ensure enforcement and governmental accountability for their implementation.
4.5 Conclusion
The chapter has analysed the extent to which the legislative, policy and institutional
frameworks of Ethiopia and South Africa pertaining to the right to alternative care of children
with disabilities comply with international human rights standards. In respect of the four
general principles, the chapter has observed that the principles are not adequately incorporated
in the Ethiopia’s legislative framework. Although the Constitution provides for equality and
non-discrimination in general terms, there is no explicit prohibition of discrimination on the
basis of disability. There is also no obligation to take positive measures and provide reasonable
accommodation in the framework. The Constitution’s provision on the best interests of the
child principle complies with international standards. However, the provision of the RFC on
the best interests of the child does not extend to all matters affecting children. This impedes
its proper implementation and falls short of ensuring that the rights of children with disabilities
are protected in measures involving their alternative care. A similar observation has been made
in relation to child participation where the scope of this right in the RFC is restricted to certain
issues in the Code. The chapter has found, too, that there is a lack of reference to the needs of
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children with disabilities in relation to participation in the Ethiopian legislative and policy
framework, which further dents its compliance with international standards. The chapter has
observed that there is a lack of an explicit provision for survival and development of children.
This omission may weaken its application in all areas, particularly so in the case of vulnerable
children including children with disabilities who are in alternative care in general and
institutional care in particular.
In relation to the rights of children with disabilities under Ethiopian law, the provision in the
Constitution does not bestow rights that children with disabilities can directly claim, and it
reflects the medical-based approach. The overall legislative framework views persons with
disabilities from a medical perspective, which is in direct contrast with the stance of the CRPD.
In respect of the right to alternative care of children with disabilities in Ethiopia, there is no
obligation in domestic laws to consider institutional care only as a measure of last resort. This
is not in line with the requirements of the CRPD which outlaws the institutionalisation of
children with disabilities deprived of their family environment. There is no provision in
subsidiary legislation that places an explicit obligation on the government to provide alternative
care and special protection and assistance to children including children with disabilities who
are temporarily or permanently deprived of their family environment.
The National Guidelines are, for the most part, in line with both the CRC and the UN
Guidelines to the extent that its provisions indicate a preference for family-based alternative
care options for children deprived of their family environment rather than institutional care.
The National Guidelines further require alternative care placements to be regularly reviewed,
which in line with the requirements of CRC. Nonetheless, the Guidelines are not
comprehensive enough to ensure quality and set standards of alternative care services.
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Moreover, as merely ‘guidelines’, they do not have the force of law and lack the legal authority
to ensure compliance with their prescripts and enable relevant actors to be held accountable.
In the case of the South African legislative and policy framework, it was submitted that the
rule of non-discrimination is in compliance with international standards. The framework
clearly prohibits discrimination on the basis of disability and requires taking positive measures
to achieve substantive quality. In respect of the best interests principle, both the Constitution
and the Children’s Act contain provisions requiring that the standard to be of ‘paramount
importance’ in all matters concerning children in accordance with international standards. As
for the participation of children with disabilities, the Constitution does not explicitly give
children the right to participate in decisions affecting them. However, the Children’s Act allows
for the child’s opinion to be heard and taken into account in all matters that affect him or her –
the Act is thus in line with the relevant international standards.
With regard to the rights of children with disabilities, South Africa’s legislative framework is
for the most part consistent with international standards as children with disabilities are
recognised as active holders of rights and accordingly entitled to have their dignity, self-
reliance and participation respected. The Children’s Act also requires that children with
disabilities be provided with family care, which suggests that the Act recognises the rights of
children with disabilities to grow up in a family environment. The obligations are compatible
with those established by international standards. However, section 11 contains features that
reflect the medical model of disability inasmuch as children with disabilities are required to be
provided with ‘special care’ instead of appropriate alternative care.
In respect of the right to alternative care of children with disabilities, the South African
Constitution expressly provides for the right of a child to family care or parental care and to
appropriate alternative care when removed from the family environment. Furthermore, the
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Children’s Act offers a range of alternative care options for children considered to be in need
of care and protection, including alternative care consisting of foster care, cluster foster care
and CYCCs. It is submitted that the Act’s introduction of a new alternative care option in the
form of cluster care is commendable. More importantly, in respect of the relative desirability
of the alternative care options, the Act promotes placement in a family environment and
expressly recognises institutional care as a measure of last resort. However, at the same time
the Act seems to rely on CYCCs for the care of children with disabilities, which may encourage
the use of institutional care as a means to care for such children.
The following chapter will discuss the administrative and institutional framework for the
upholding of the right to alternative care of children with disabilities in Ethiopia and South
Africa.
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Chapter 5: Institutional and Administrative Measures for the
Upholding of the Right to Alternative Care of Children with Disabilities in Ethiopia and South Africa
5.1 Introduction
The previous chapter explored the legislative and policy measures Ethiopia and South Africa
have taken in relation to the right to alternative care of children with disabilities. This chapter
tackles the third sub-question of the study1 and critically assesses whether the two countries’
institutional and administrative measures are adequate for ensuring that children with
disabilities receive suitable alternative care in line with international standards.2
In respect of the suitability of alternative care under the CRC and ACRWC, it is implied that
priority is given to family-based alternative care for children with disabilities who are
temporarily or permanently deprived of their family environment.3 However, ‘suitable
institutions’ are allowed in the CRC and ACRWC provided they are used only ‘if necessary’.4
The UN Guidelines regard residential care facilities as one of the alternative care options
considered potentially suitable for children deprived of their ‘parental care’.5 However, clear
1 The sub-question is: ‘What are the administrative and institutional measures that Ethiopia and South Africa have taken to uphold the right to suitable alternative care for children with disabilities?’ Under the CRC, ACRWC and CRPD, Ethiopia and South Africa are under an obligation to take measures beyond legislative measures, including administrative and other measures, to implement the rights recognised in the respective treaties. See art 4 of the CRC, art 1(1) of the ACRWC and art 4(1)(a) of the CRPD. 2 As mentioned in s 1(6) of Chapter 1, the scope of this thesis is limited to investigating the adequacy of the measures put in place to ensure that children with disabilities have access to suitable alternative care, as opposed to issues related to the prevention of alternative care in the two selected jurisdictions. 3 This is indicated as family-based alternative care options such as foster care are listed first in the possible forms of alternative care options provided by the two instruments. CRC, art 20(3) and ACRWC, art 25(2)(a). 4 This indicated in the relevant provisions dealing with alternative care, with the CRC using the qualifying phrase ‘if necessary’ before prescribing placement of children in ‘suitable institution’ as a potential form of alternative care; the ACRWC places ‘alternative family care’ before the placement of children in ‘suitable institutions’. CRC, art 20(3) and ACRWC, art 25(2)(a). 5 UN Guidelines, paras 23 and 29(c)(iv). The UN Guidelines seek to clarify the obligations arising from art 20 of the CRC on alternative care; it is argued that ensuring that alternative care is suitable is also an obligation implicitly imposed on states.
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priority is given to family-based forms of alternative care.6 Nonetheless, the term ‘institutions’,
as discussed in previous chapters,7 is not synonymous with ‘residential care’; the former is used
in the UN Guidelines to refer to ‘large residential facilities, which are subject to ‘progressive
elimination’.8 Therefore, the suitability principle is reinforced by the shift towards
deinstitutionalising the alternative care system and fostering family-based or family-type
settings.9 In the CRPD, suitable alternative care relates to the provision of alternative care
within the wider family or a family-based alternative care within the community.10 Thus, the
provision of alternative care that is outside the family is not considered as suitable for children
with disabilities in terms of the CRPD.11 As established in the previous chapter, the CRPD and
its jurisprudence provide a higher level of protection to children with disabilities in the context
of alternative care.
In the light of this, it is argued that, over and above taking legislative measures, providing
suitable alternative care to children with disabilities entails putting in place institutional and
administrative frameworks to ensure that they are not routinely placed in institutions and have
equal access to family-based alternative care when deprived of their family environment. This
necessitates that a range of alternative care options are available and that priority is given to
developing family-based alternative care options.12 An integral component of ensuring the
suitability of alternative care is setting up a strong system of gatekeeping through the
establishment of a regulatory framework to ensure a standard procedure for determining the
6 UN Guidelines, para 53. 7 See s 2(6)(3) of Chapter 2 of this thesis, where the meaning of the term ‘institution’ has been unpacked. 8 UN Guidelines, para 23. 9 Cantwell N ‘The human rights of children in the context of formal alternative care’ in Vandenhole W, Desmet E, Reynaert D, et al (eds) Routledge International Handbook of Children’s Rights Studies (2015) 261. 10 CRPD, art 23(5). 11 CRPD, art 23(5); CRPD Committee, GC No. 5 (2017), para 16(c). 12 Cantwell N, Davidson J, Elsley S, et al. Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children (2012) 22.
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admission of a child into alternative care and the most appropriate form of care.13 The decision-
making in the latter regard has to be made by the competent authority following thorough
assessment, planning and review through established structures and on a case-by-case basis.14
Rigorous screening measures by competent authorities are also crucial to ensure that children
with disabilities are placed in residential care only when it is appropriate.15 Some of these
measures are crucial not only to ensure that alternative care is suitable but to ensure that it is
necessary.16 It is also important to establish a mechanism and process for the registration and
authorisation of alternative care providers on the basis of criteria set by the government, and to
subject this to inspection and monitoring.17 The government’s role extends to regularly
reviewing the placement of children through its competent authorities to ensure the safety and
well-being of the child and the appropriateness of the placement.18
Furthermore, it is necessary to ensure that forms of financing of alternative care do not
encourage the unnecessary and prolonged placement of children with disabilities in alternative
care and advantage organisations working mainly for profit-based purposes.19 It is also
necessary to eliminate administrative hindrances that impede the reunification of children with
family; to adequately resource alternative care (both in financial and human-resource terms);
and to establish organisational routines in care settings that serve the developmental and
protection needs of children.20
13 UN Guidelines, para 74; Cantwell et al. (2012) 22. 14 UN Guidelines, para 57; Cantwell et al. (2012) 68. 15 UN Guidelines, para 125; Cantwell et al. (2012) 104. 16 Some of measures that will be discussed relate to both the suitability as well as the necessity principle set forth in the UN Guidelines. However, as noted in Chapter 1, the scope of this thesis is limited to assessing the provision of alternative care rather than the prevention of the need for it, which relates to the necessity principle. 17 UN Guidelines, para 55 and 105; Cantwell (2012) 22. 18 UN Guidelines, para 5; Davidson J, Milligan I, Quinn N, et al ‘Developing family-based care: Complexities in implementing the UN Guidelines for the Alternative Care of Children’ (2016) 20 European Journal of Social Work 5. 19 UN Guidelines, paras 108, 20 and 127. 20 Davidson et al. (2016) 5.
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Thus, the following sections evaluate the institutional and administrative measures the two
countries have taken to implement children with disabilities’ right to alternative care and
determine whether they are in line with international standards and adequate to ensure children
with disabilities are provided with suitable alternative care. Thus, the discussion includes
examining institutional frameworks in terms of their monitoring and oversight capacity and
coordinating mechanisms; data collection; financial and human resources allocation; and the
role of civil society and independent monitoring mechanisms. In doing so, the chapter
highlights the challenges as well as opportunities that arise in upholding the right to suitable
alternative care for children with disabilities in the selected jurisdictions.
5.2 Ethiopia’s and South Africa’s institutional and administrative
framework
5.2.1 Monitoring mandate and coordinating mechanisms
Children in alternative care are at risk of a range of violations of rights in all forms of alternative
care, including abuse, neglect, violence and exploitation.21 Studies show that monitoring
alternative care placement is a necessary component of ensuring that children receive quality
services and that they are protected from abuse, neglect and maltreatment.22 This is particularly
true for children with disabilities placed in institutional care.23 A strong institutional framework
is also necessary to ensure that there is a centralised system to accredit, monitor, regulate and
oversee private entities involved in the provision of alternative care services to ensure
21 Pinheiro P World Report on Violence against Children (2006) 87 and 176; Family for Every Child ‘Strategies for delivering safe and effective foster care: A review of the evidence for those designing and delivering foster care programmes’ (2015) 26 available at http://bit.ly/37BVSxg (accessed 29 September 2016). 22 Family for Every Child (2015) 26. 23 Pinheiro (2006) 176.
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‘accountability and transparency in service provision’.24 To this end, the CRC Committee in
its General Comment No. 5 emphasises the importance of setting up a monitoring and
coordinating body (both governmental and independent) for the implementation of the rights
of children.25 The Committee also underlines the importance of effective coordination and
monitoring of implementation of the CRC among the various governmental bodies concerned,
at all administrative levels, and between the government and the private sector.26
Research shows that more often than not the lack of effective centralised organisation of
alternative care provision has opened doors for private alternative care service providers to
operate in accordance with their own agendas and criteria, resulting in inconsistent standards
of admission of children, inconsistent review process across various alternative care settings,
as well as gaps in the range of alternative care placements available, particularly for children
with disabilities.27 The establishment of a monitoring mechanism is thus key to ensure that
financial resourcing and allocation reflect the best interests of each child concerned, benefit its
intended targets, and are used to provide quality care for children, and that children are not
placed in alternative care unnecessarily or kept in care for longer than necessary for purposes
that are profit-driven.28 Under the CRC, states are under obligation to ensure that non-state
service providers operate in compliance with the Convention by putting in place a regular
24 Family for Every Child (2015) 28. For instance, in Togo, institutions run by private organisations were strongly relied on as a means to care for children deprived of their family environment. However, the government was able to reduce reliance on institutions and improve the development of family-based alternatives for children without parental care such as foster care by taking a leadership role in establishing a centralised system for referral and monitoring of out-of-home placement of children. Cantwell et al. (2012) 93. 25 CRC Committee GC No. 5 (2003), paras 9 and 27. 26 CRC Committee, GC No. 5 (2003), paras 9, 27 and 37–9. 27 Chiwaula L, Dobson R, Elsley S, Drumming together for change: A child’s right to quality care in Sub-Saharan Africa (2014) 53–4. The study assessed the status of a child’s right to quality care in sub-Saharan African and focused on specific countries, including Benin, Kenya, Zambia, Zimbabwe, Gambia, Malawi and Tanzania. 28 Cantwell et al. (2012) 106.
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monitoring mechanism aimed at ensuring that all state and non-state service providers respect
the Convention.29
Moreover, governments are increasingly reliant on faith-based organisations and private
enterprises to provide the bulk of public services, including formal alternative care. Thus, it
becomes even more important that systems are in place to guard against discrimination on the
basis of disability within alternative care services, including those run by the non-state sector,
and to ensure that they are subject to both non-discrimination and equality norms in relation to
children with disabilities as well as registration, regular inspection and monitoring. To this end,
the CRPD requires that states take additional measures towards abolishing discriminatory
conduct on the basis of disability by persons, organisations, or private enterprises.30
In South Africa, the Department for Social Development (DSD) is the lead department vested
with the mandate to monitor the rights of children and persons/children with disabilities.31 The
core mandate of the DSD includes monitoring facilities, resources and service provision to
children in alternative care facilities, a mandate that stems from the Constitution as well as
legislation and policies.32 In addition to the DSD, the Department of Justice and Constitutional
Development (DJCD) ensures that children are placed appropriately through the court system.
This mandate extends to the regular reviews of placements.33 Alternative care service providers
29 CRC Committee, GC No. 5 (2003) paras 42–4. 30 CRPD, art 4(1)(e). 31 However, prior to 2009 issues relating to persons with disabilities were under the mandate of the Office on the Status of Disabled Persons (OSDP) – its location in the Presidency gave it prominence and a degree of political influence. The OSDP was absorbed into the Department of Women, Children and People with Disabilities (hereafter DWCPD) in May 2009 with the intention of strengthening the monitoring of the rights of persons with disabilities and improving coordination among various stakeholders. CRC Committee, Consideration of Reports Submitted by States parties under article 44 of the Convention, Second periodic reports of States parties due in 2002, South Africa (UN Doc. CRC/C/ZAF/2, 2015), para 406. 32 The responsibility to monitor alternative care settings and service provided in such settings was placed on the DWCPD prior to the transfer of responsibilities of children and persons with disabilities to the DSD. DWCPD National Plan of Action for Children in South Africa (2012) 86. 33 DWCPD (2012) 86.
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are subject to registration and approval and have to conform to the minimum standards
established by the Children’s Act.34
The transfer of issues related to children and persons with disabilities from the Department of
Women, Children and People with Disabilities (DWCPD) to the DSD in 2014 was criticised
given that the former had played the role of monitoring and coordinating the rights of children
and persons/children with disabilities at national level despite its shortcomings.35 Its dissolution
was regarded as contrary to international obligations because the transfer of issues relating to
vulnerable groups from a dedicated department within the Presidency effectively removed
those issues from the centre of political decision-making and led to a considerable decrease in
systemic investment.36 The DWCPD was dissolved due its capacity constraints and lack of
authority over implementing departments, but these problems have not been fully addressed by
moving its the mandate to DSD.37 This is especially true with regard to the DSD’s relatively
weak political authority over the range of implementing departments.38
The inadequacy of South Africa’s institutional framework to monitor and coordinate and
ensure the suitability of alternative care for children with disabilities is evident in the fact that
most children placed in either registered or unregistered alternative care settings do not have a
34 In terms of s 197 of the Children’s Act, CYYCs (both governmental and private) are subject to registration with the relevant provincial DSD and are required to operate in line with the standards set out in the Act. 35 The 2009 national elections saw the establishment of a number of ministries including the DWCPD. The DWCPD replaced the previous national ‘multi-agency structures’ in the Presidency and was a product of a collective effort by civil society groups in the field of children’s right to improve the monitoring and coordination of the rights of women, children and persons with disabilities. The Department of Women was relocated to the Presidency in 2014, replacing the DWCPD, with its focus falling on the empowerment of women and on gender equality. As a result, the additional responsibilities of children and persons with disabilities were transferred to the DSD. Martin P Analysis of the children’s sector in South Africa (2015) 81; ACPF Children with disabilities in South Africa: The hidden reality (2011e) 29; Parliamentary Monitoring Group ‘Department of Women, Children and People with Disabilities budgetary review and recommendations report’ (2013) available at http://bit.ly/2rZzuyM (accessed 21 September 2017); Alternate Report Coalition – Child Rights South Africa (ARC-CRSA) ‘Alternate report to the UN Committee on the Rights of the Child in response to South Africa’s combined 2nd, 3rd and 4th periodic country report on the UN Convention on the Rights of the Child’ (2015) available at http://bit.ly/36vbRgJ (accessed 11 June 2017), para 8. 36 Martin (2015) 81. 37 ARC-CRSA (2015) para 8. 38 ARC-CRSA (2015) para 8.
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court order for their placement.39 Similarly, alternative care is envisaged as a temporary
arrangement, but because court orders are not reviewed regularly and timeously, children stay
in alternative care for longer than necessary40 in terms of lapsed court orders and with
placements sometimes going unreviewed for as long as seven years.41
Countrywide, the majority of CYCCs are operated by NGOs,42 and there are concerns about
unregistered CYCCs and the placement of children in them without court orders.43 The growing
number of unregistered CYCCs in South Africa raises concerns about services provided in
these facilities as the services are neither monitored to ensure they meet minimum standards
nor supported financially or otherwise by the government.44 It has been revealed that most of
these unregistered facilities do not meet the norms and standards of the Children’s Act.45 This
indicates that the monitoring of placements of children with disabilities in CYCCs is limited.
This presents a great danger to children’s rights, since the non-registration of these facilities
39 In the Community Agency for Social Enquiry (CASE) survey, it was revealed that more than half of the children placed in unregistered CYCCs (56 per cent) did not have a court order for their placement, whereas the percentage is lower in registered CYCCs (16 per cent). CASE Unregistered Child and Youth Care Centres and Temporary Safe Care (2012) (hereafter CASE (2012) 38. 40 Jamieson L ‘Children’s rights to appropriate alternative care when removed from the family environment: A review of South Africa’s child and youth care centres’ in Proudlcok P (ed) South Africa’s Progress in Realising Children’s Rights: A Law Review (2014) 233. 41 It was found that in 2010 there were significant number of children (43 per cent) in registered CYCCCs with lapsed court orders or extensions, with some orders (9 per cent) dating as far back as 2003. Baseline Study on Registered Child and Youth Care Centres (2010) (hereafter CASE (2010)) 61. Jamieson (2014) 233. 42 Meintjes et al. (2007). 43 Department of Social Development (DSD) South Africa’s Second Country Report to the African Committee of Experts on the Rights and Welfare of the Child on the African Charter on the Rights of and Welfare of the Child (Reporting Period: May 2013 to May 2016) para 250. 44 Meintjes-van der Walt M, Barratt A, Chinnian K, et al Introduction to South African Law: Fresh Perspectives 3 ed (2019); Bower C (ed) 'Initial complementary report to the African Committee of Experts in response to South Africa‘s initial country report on the African Charter on the Rights and Welfare of the Child’ (2014) paras 119–20 available at http://bit.ly/2sKUqds (accessed 27 May 2018); The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) Concluding Observations: South Africa (2014) para 40. UNICEF Alternative Care for Children in Southern Africa: Progress, Challenges and Future Directions (2018) 10. In 2010 the CASE was commissioned by the DSD and UNICEF to conduct an audit of registered facilities in South Africa and found that there are 345 such facilities in the country. Two years later in 2012 another audit revealed that there were 115 unregistered facilities in South Africa. However, it is acknowledged that there may be unregistered facilities that would not been captured by the survey. CASE (2012); CASE (2010); Bower (2014) para 120; Jamieson L ‘Children and young people’s right to participate in residential care in South Africa’ (2017) 21(1) The International Journal of Human Rights 95. 45 Bower (2014) para 120.
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effectively exempts them from complying with minimum requirements and state oversight as
they operate in the shadows. In such circumstances, it is difficult, if not impossible, to ensure
that the rights of children with disabilities are protected and that the placement of each child is
in keeping with the principle of suitability.
The lack of regular review of placements in alternative care has been partly attributed to the
shortage46 and high workload of social workers, who rarely have time to conduct the necessary
assessment of foster parents, a situation that results in unsuccessful foster placement
outcomes.47 The drive to place children in family-based settings is not matched by the capacity
of social services to process, monitor or support placements adequately.48 This also has an
impact on social workers’ role in supervising foster placements and maintaining contact with
children in foster care and their caregivers, with visits to foster care homes happening on
average only once a year.49 The shortage has also meant that not enough emphasis is given to
the provision of family reunification services for children placed in CYCCs and other forms of
alternative care – services that are further weakened by insufficient funding, lack of training,
and weak enforcement of laws, policies and standards.50 As a result, children remain in
alternative care for longer than necessary,51 and there are, overall, negative impacts on their
well-being and the stability of their lives.52
In Ethiopia, the Ministry of Women, Children and Youth Affairs (MOWCYA) is responsible
for facilitating care and support programmes for children without parental care and exercising
46 DSD Situational Analysis Report on the Social Service Workforce Servicing Children (2012) 60; CASE (2010) 53. 47 Van der Walt G ‘Alternative care in South Africa’ (2018) 39(3) Obiter 638. 48 Meintjes H, Moses S, Berry L, et al Home Truths: The Phenomenon of Residential Care for Children in a Time of AIDs (2007) iii. 49 Van der Walt (2018) 638. 50 ACERWC Concluding Observations: South Africa (2014) paras 39–40. 51 ACERWC Concluding Observations: South Africa (2014) para 39. 52 Van der Walt (2018) 638.
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oversight in ensuring that quality alternative care is provided.53 Secondly, monitoring and
evaluation are prescribed in the National Guidelines, which require that the ‘relevant Regional
authority’ has to ‘follow-up, monitor and evaluate the care offered to a child placed in
institutional care’.54 To this end, the MOLSA has been vested with the responsibility to
supervise and monitor child-care institutions.55 Furthermore, the Ministry of Justice (MOJ) is
mandated to register and approve alternative care services.56 The institutional structure thus
reveals that the mandate to monitor the rights of children with disabilities in alternative care
lies with the MOWCYA, MOLSA and the MOJ.57
Nevertheless, Ethiopia’s systems for the inspection and monitoring of alternative care have not
been effective.58 There is a lack of uniform application of standards in relation to the admission
of children into alternative care, to the monitoring and evaluation their placement as well as to
the provision of appropriate care on a case-by-case basis.59 Furthermore, the current monitoring
system emphasises meeting basic physical needs while neglecting the psychosocial well-being
of children in institutional care.60 This has negative implications for children with disabilities,
given that they require targeted psychosocial support services due to the vulnerabilities
53 The MOWCYA has established a Bureau of Women, Children and Youth Affairs (BOWCYA) in each region with a mandate to follow up, monitor and evaluate the operation of institutions providing care to children deprived of their family environment. Ministry of Women Children and Youth Affairs Combined 4th and 5th Periodic Reports of the Federal Democratic Republic of Ethiopia to the United Nations Committee on the Rights of the Child (2006 – 2011) (2012) ss 6(6) and 19; National Guidelines, 10. 54 National Guidelines, 50. 55 National Guidelines, 10. FHI et al. (2010) 22. 56 National Guidelines, 64. 57 While MOWCYA and MOLSA are responsible for overseeing, supervising and monitoring children placed in alternative care to ensure they receive quality care and that alternative care settings meet minimum standards, the MOJ is responsible for ensuring that alternative care providers are registered and licensed and meet the eligibility criteria before embarking on the provision of such services to children. Within MOLSA, the Department of Rehabilitation Affairs is responsible for coordinating disability issues at the federal level and providing policy guidance and technical support to other organs of state. In respect of alternative care, MOWCYA, as noted, has the mandate to coordinate efforts and collaboration by all stakeholders to effectuate the rights of children. Sida ‘Disability rights in Ethiopia’ (2014) 2 available at http://bit.ly/2Fqw9vJ (accessed 12 July 2015). 58 Family Health International/Ethiopia & Children’s Investment Fund Foundation (CIFF) ‘Improving care options for children in Ethiopia through understanding and preventing institutionalisation’ (unpublished draft report, 2008) 200. 59 FHI/Ethiopia & (CIFF) (2008) 16. 60 FHI/Ethiopia & (CIFF) (2008) 204.
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associated with their particular ages, developmental needs and disabilities.61 Agencies
providing alternative care services are not always licensed and approved; the placement of
children in alternative care is not always regularly reviewed; and existing institutions operate
with little to no oversight.62 Most agencies’ contact with the responsible body to monitor and
oversee such settings is limited to reporting and registration, which does not necessarily reflect
a regular supervisory role.63 For children including children with disabilities placed in
alternative care, particularly in institutions, the lack of effective state oversight and monitoring
has meant that other family-based alternative care options are not always explored and that
children stay in institutional care for longer than necessary.64 This has been attributed mainly
to the assigning of the responsibility of monitoring and oversight of alternative care to different
ministries and departments.65 As such, the need to designate an institutional reform to better
coordinate and monitor the rights of children has been emphasised.66
In an effort to improve the coordination of stakeholders in the field of alternative care provision
and to strengthen the development of appropriate alternative care programmes and policies for
children deprived of their family environment as well as to facilitate support to families, the
Ethiopian Alternative Childcare Network was launched in 2012. The Network consisted of
MOWCYA, MOJ, Ministry of Health Ministry of Education, the police, bilateral organisations,
donors, and NGOs (both international and local). The Network facilitated the implementation
61 Hanass-Hancock J ‘Psychosocial support for children with disability and their carers’ (2014) available at http://bit.ly/2urFd1l 9–10 (accessed 10 September 2016). 62 FHI/Ethiopia & (CIFF) (2008) 200. 63 FHI et al. (2010) 35–6. The monitoring of alternative care with BOLSA have been limited to reporting after having registered with the BOJ. A study found that only 19 institutions contacted for the purpose of the research identified MOWCYA as the governmental institution mandated to oversee child-care institutions. The majority of the institutions (60 institutions) indicated they are accountable to the BOJ. However, the BOJ is mandated with the registration and accreditation of child-care institutions. This indicates that contact with BOJ was only for the purpose of registration and accreditation, which happens in the initial stages. 64 FHI/Ethiopia & (CIFF) (2008) 200. 65 FHI/Ethiopia & (CIFF) (2008) 16. 66 Teka B Child Rights Protection in Ethiopia and Kenya: a Comparative Analysis (unpublished LLM thesis, Addis Ababa University, 2015) 67–8; Kedir A, Shiferaw A, Mulatu F et al Baseline study for a comprehensive child law in Ethiopia (2013) 32.
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of the various alternative options by establishing a system of coordination. The Network is no
longer operational owing to the high workload of experts, among other unknown factors.67
Moreover, existing monitoring activities of Ethiopia also indicate that children including
children with disabilities placed in family-based alternative care settings face a greater risk of
not having their placement regularly reviewed.68 This indicates that formal oversight and
monitoring of children including children with disabilities placed in family-based alternative
care is lacking. This poses a challenge, as other countries’ experiences show that continuous
monitoring of foster care placement is crucial to ensuring positive outcomes of placement of
children with disabilities in such care and to identifying the needs of caregivers of those
children.69
From the foregoing discussion, it is observed that both countries frameworks reflect a worrying
trend for the rights of children with disabilities in alternative care. In South Africa, the gap in
implementation is evident in the failure to register institutions and the inadequate monitoring,
which pose risks of human rights violations for children with disabilities in such settings.
Strengthening the institutional framework as well as the capacity of those involved in the role
of supervision would fill some of these gaps in implementation. In this regard, in South Africa
the need for the government to assign a new implementing body to ensure the implementation,
realisation and monitoring of the rights of children has been also emphasised.70 In Ethiopia,
too, the role of ensuring the suitability of alternative care options for children with disabilities
and the ongoing suitability of such placement to a particular child is stifled by logistical
67 Jima E Ensuring a Better Protection for Children Deprived of Family Environment: The Application of Subsidiarity Principle in Ethiopia (unpublished LLM thesis, Addis Ababa University, 2016) 52. 68 As institutional care placement is carried out by governmental institutions and subject to registration and licensing, one would assume that monitoring the operation of such care settings and the circumstances of children placed in such care would be less challenging than in other placements such as foster care. There is also no information on the circumstances and the number of children with disabilities placed in foster care. Also absent are details on accredited foster carers and vetting processes of foster carers in relation to children with disabilities. 69 Family for Every Child (2015) 33. 70 ACERWC Concluding Observations: South Africa (2014) para 12.
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limitations. The coordinating conundrum is shown in the failure to improve the competence
and quality of service in child-care institutions. This is concerning as coordination among the
relevant government institutions as well as between the government and private agencies is
necessary for the effective provision of alternative care services.
In both countries, there is a need for governmental cooperation with CSOs in the facilitation
and monitoring and coordination of alternative care.71 The monitoring comes through ensuring
that accountability and transparency by the government in matters concerning children with
disabilities. Coordination is the overarching benefit that draws on the strengths of both the
government and CSOs as private players in matters that concern children with disabilities.
5.2.2. Independent monitoring mechanisms
As part of their obligation to monitor the implementation of the CRC, ACRWC and the CRPD,
states are encouraged to establish independent national human rights institutions (NHRIs).72
These institutions should also ‘proactively’ offer assistance to children, paying particular
attention to the most vulnerable and disadvantaged groups such as children with disabilities.73
Irrespective of the shape or form this institution takes, it should be independent and adequately
supplied with the necessary human and financial resources.74 It must be geographically and
physically accessible and well known to children with disabilities and their caregivers.75
The role of independent monitoring mechanisms in the context of the provision of alternative
care of children is clearly outlined in the UN Guidelines.76 First, states are urged to establish
71 See s 5(2)(5) of this chapter for a further discussion on the role of CSOs in the realisation of the right to alternative care of children with disabilities in South Africa and Ethiopia. 72 CRC Committee, GC No. 5 (2003), paras 9, 27, 46 and 65. 73 CRC Committee, General Comment No.2 ‘The role of independent national human rights institutions in the promotion and protection of the rights of the child’ (2002) (hereafter CRC Committee, GC No. 2 (2002)) para 15; ACERWC General Comment No. 5 ‘State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection’ (2018) 48–50. 74 CRC Committee, GC No. 9 (2006) para 24(a). 75 CRC Committee, GC No. 2 (2002) para 15; CRC Committee, GC No. 9 (2006) para 24(b) and (c). 76 UN Guidelines, para 130(a)–(d).
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an independent monitoring mechanism which is in alignment with the principles relating to the
status of national institutions for the promotion and protection of human rights (the Paris
Principles).77 These institutions are expected to be easily accessible by children themselves and
those caring for them.78 The mandate of such mechanism should include seeking the views of
and offering advice to children in all forms of alternative care;79 confidentially visiting
alternative care settings and looking into any alleged violations of the rights of children in such
settings on complaint or on own initiative;80 advocating for the necessary policies to relevant
bodies to enhance the protection of children in alternative care in line with accepted standards
on child protection, health, development and care;81 and offering guidance on proposals and
draft legislation and submitting independent reports to the CRC Committee on the
implementation of the UN Guidelines.82
The constitutions of South Africa and Ethiopia provide the legal ground for the establishment
of such independent monitoring mechanisms:83 in South Africa, the South African Human
Rights Commission (SAHRC);84 in Ethiopia, the Ethiopian Human Rights Commission
(EHRC) and Ethiopian Institution of the Ombudsman (EIO).85 In both countries, the
mechanisms are vested with the mandate to protect, promote and respect human rights, which
includes children as well as children with disabilities.86 Both countries have organs assigned to
77 UN Guidelines, para 30. 78 UN Guidelines, para 30. 79 UN Guidelines, para 130(a). 80 UN Guidelines, para 130(a). 81 UN Guidelines, para 130(b). 82 UN Guidelines, para 130(c)–(d). 83 The Ethiopian Constitution offers the legal ground for the establishment of NHRIs in arts 55(14) and (15); ss 181(1)(b) and 184 of the South African Constitution provide for the establishment of the SAHRC. 84 In addition to its constitutional mandate, the SAHRC also has a statutory mandate which stems from the enabling legislation, the South African Human Rights Commission Act 40 of 2013 ((hereafter SAHRC Act). 85 Ethiopian Human Rights Commission Establishment Proclamation No. 210/2000 (hereafter EHRC Establishment Proclamation (2000)) and Institution of the Ombudsman Establishment Proclamation No. 211/2000 (hereafter the EIO Establishment Proclamation (2000)) 86 Both the EHRC and EIO have the mandate to promote and protect the rights of children including children with disabilities by, among other things, conducting research and studies towards the effective implementation on the rights of children with disabilities. EHRC Establishment Proclamation (2000) and EIO Establishment Proclamation (2000). In the same vein, the SAHRC is vested with the mandate to promote human rights and a
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deal with children’s rights within the commissions – in South Africa, the Children’s Rights
portfolio of the SAHRC;87 the EHRC and the EIO have commissioners heading Children and
Women Affairs.88 Under Children and Women Affairs, both institutions have a Children,
Women and persons with disabilities directorate responsible for promoting and protecting the
rights of these vulnerable segments.89
However, the bodies assigned to deal with children’s rights in both countries have not fully
discharged their mandates mainly due to inadequate allocation of resources.90 The
establishment of an independent child-rights monitoring body with adequate financial
resources has been a recommendation given by the respective international and regional child-
rights monitoring bodies to ensure the effective implementation of its international child-rights
law obligations.91 In the case of South Africa, although it is agreed by interested parties that an
independent monitoring mechanism is needed, the exact form it should take has been a subject
of debate.92 Some are of the view that there is a need to establish a constitutionally entrenched,
impartial and adequately resourced children’s ombudsperson who would serve as a complaints
mechanism dedicated to children’s rights.93 The other position is that the SAHRC’s capacity
should be strengthened and a dedicated Children’s Rights Commissioner be appointed within
culture of human rights and to monitor the observance of human rights in South Africa. South Africa Constitution, ss 181 and 184(1)(a) – (c). 87 SAHRC ‘Children’s rights’ available at http://bit.ly/2QtyoVm (accessed 4 November 2019). 88 Alemu G & Birmeta Y Handbook on the Rights of the Child in Ethiopia (2012) 33. 89 Alemu & Birmeta (2012) 33; The Ombudsman ‘EIO resolved more than 80 % complaints lodged’ (2017) 1(3) available at http://bit.ly/35wy909 (accessed July 2019). 90 Birhane Ensuring the Rights of “Little Anglels”: Implementation of Socio-Economic Rights of Children with Disabilities in Ethiopia (unpublished LL.M thesis, Addis Ababa University, 2012) 98; ARC-CRSA ‘Supplementary submissions to the United Nations Committee on the Rights of the Child following the Government of South Africa’s written replies to the list of issues’ (2016) available at http://bit.ly/2T2OQ0z (accessed 24 March 2018), paras 14 and 5. The budget allocated to the SAHRC was R189.7 million for 2019/20. Of this amount, only 7 per cent, that is, R13.2 million, is earmarked for core operations distributed to seven different human rights portfolios, including the children’s rights portfolio. Dengler J ‘Western Cape Children’s Commissioner under the spotlight’ Go South 26 August 2019 available at http://bit.ly/2rZQOnh (accessed 4 November 2019). 91 ARC-CRSA (2017) para 45. 92 ARC-CRSA (2017) para 46. 93 ARC-CRSA (2016) para 13.
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the Commission with greater resources.94 The downside of incorporating child-rights issues
into the broad mandate of the SAHRC is the risk of the side-lining of such issues.95 However,
there is agreement on the need for the establishment of an independent child-rights monitoring
body which has adequate capacity, the necessary independence and authority, and involves all
stakeholders including CSOs and the general public.96 The latter position has been supported
in the context of alternative care as it would serve as an independent body to carry out regular
oversight and monitoring of CYCCs, which would fall within the mandate of such institution.97
Although, the scope of this study is limited to national laws and policies, it is important to
highlight that the provincial parliament of the Western Cape has recently enacted the Western
Cape Commissioner for Children Act (the Act).98 This statute establishes a Children’s
Commissioner in the province of the Western Cape. The mandate of the Commissioner
includes monitoring the ‘rights, needs and interests of children in home care, foster care,
temporary safe care and child and youth care centres’.99 The specificity of the Commissioner’s
mandate is commendable and necessary to ensure that the mandate of the Commissioner
extends to monitoring the suitability of alternative care for children with disabilities.
In the case of Ethiopia, in addition to the inadequate allocation of resources towards the
protection of children’s rights within the independent mechanisms, there is a general lack of
knowledge of the activities of the EHRC and EIO in relation to their mandated responsibilities
towards children100 including children with disabilities. Moreover, the EHRC has not yet
mainstreamed issues that are specific to children with disabilities in its undertakings and does
94 ARC-CRSA (2017) para 46; ARC-CRSA (2016) para 12. 95 ARC-CRSA (2017) para 47. 96 ARC-CRSA (2017) para 47. 97 Hansungule Z Questionable correction: Independent oversight of child and youth Care centres in South Africa (2018) 11–12. 98 Western Cape Commissioner for Children Act, 2019. 99 Western Cape Commissioner for Children Act, s 7(4)(iii). 100 Alemu & Birmeta (2012) 34.
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not have a focal point assigned to address concerns specific to such children.101 It is further
incapacitated by lack of experts familiar with issues related to children with disabilities.102
Moreover, the now-repealed CSO proclamation has had an impact on CSO’s capacity to work
in cooperation with the EHRC.103 Hence, the EHRC has not been involved in any significant
activity that could have an effect on the rights of children with disabilities, apart from minor
awareness-raising activities mainly in the area of education of children with disabilities.104 The
EHRC has also been found to be inaccessible to children with disabilities, especially those
located in rural areas.105 Moreover, there have been concerns about its effectiveness as the
EHRC does not comply with the principles relating to the status of national institutions for the
protection and promotion of human rights (the Paris Principles).106 As such, one of the
recommendations given to the government by the CRPD Committee involves ensuring the
monitoring and implementation of the Convention, particularly ‘through systematic
consultation with the Human Rights Commission and the Ethiopian Institution of the
Ombudsman’, persons with disabilities and CSOs.107
In conclusion, it is highlighted that states are expected to establish national human rights
institutions that should be independent, accessible and aligned to the UN Guidelines. Both
countries’ constitutions provide for the establishment of independent monitoring mechanisms,
that is, the SAHRC the EIO. It is not in doubt that the mechanisms have the mandate to protect,
promote and respect the human rights of persons including children with disabilities. However,
101 Birhane (2012) 96–7. 102 Degol A The Role of the Ethiopian Human Rights Commission in the Protection of the Rights of Vulnerable Groups: The Case of Children, Women and Persons with Disabilities (unpublished LLM thesis, Addis Ababa University, 2009) 123. 103 Teka (2015) 84. 104 Birhane (2012) 98. 105 Degol (2009) 122–23. 106 CRPD Committee Concluding Observation: Ethiopia (UN Doc. CRPD/C/ETH/CO/1, 2016), para 69. 107 CRPD Committee Concluding Observation: Ethiopia (UN Doc. CRPD/C/ETH/CO/1, 2016), para 70.
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these organisations have not fully executed their mandates notwithstanding that their
establishment is a step in the right direction.
5.2.3 Data collection
Ethiopia and South Africa are required to undertake data collection and analysis and develop
indicators for the measurement of the implementation of the rights of children with
disabilities.108 The data collected should be detailed, reliable and disaggregated in order, inter
alia, to identify discrimination in the realisation of rights.109 The CRC Committee has noted
that data collection in relation to children with disabilities is an issue often overlooked and not
given priority.110 To this end, the Committee urges states to put in place systems for collecting
accurate, standardised and disaggregated data that reflect the lived realities of children with
disabilities.111
Obtaining accurate, reliable and up-to-date data on the nature and prevalence of disability
presents various challenges worldwide mainly due to lack of a uniform definition of disability
applicable across a wide range of sectors and services.112 In South Africa, various definitions
of disability have been employed for different purposes and contexts – for instance, the
definition used to establish eligibility for social assistance differs from the definition used in
population censuses.113 In respect of a legal definitions of disability employed in legislations
such as the Social Assistance Act, it has been pointed out that they fall short of reflecting
conceptualising disability in accordance with the human rights model of disability.114 However,
108 CRC Committee, GC No. 9 (2006) para 19. 109 CRC Committee GC No. 5 (2003) 48. 110 CRC Committee, GC No. 9 (2006) para 19. 111 CRC Committee, GC No. 9 (2006) 19. 112 Department of Social Development Draft White Paper on a National Disability Rights Policy (2014) 21 as cited in Wiid Y The Right to Social Security of Persons with Disabilities in South Africa (unpublished LLD thesis, University of the Western Cape, 2015) 51. 113 Wiid (2015) 51. 114 For instance, the medical model of disability is evident in the definition of persons with disabilities in the Social Assistance Act. This is indicated through the reading of ss 9(b) and 1 of the Act, which defines persons with disabilities as persons who ‘owing to a physical or mental disability, [are] unfit to obtain by virtue of any service,
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there exists a definition of disability that is in compliance with the CRPD at a policy level as
the WPRPD adopts the CRPD’s description of disability.115 Thus, South Africa lacks a legal
definition that is in alignment with article 1 of the CRPD.116 The lack of a legal definition of
disability may have affected the availability of accurate and reliable data on exact numbers of
children with disabilities in the country.
In respect of existing data on the prevalence of disability in South Africa, the 2001 general
population census estimated the number of people who have disabilities at five per cent of the
population.117 The latest data on the prevalence of disability from Statistics South Africa is the
2011 population census, which estimated the number of people with ‘impairments’ at 7.5 per
cent of the total population,118 which translates to 3.8 million persons.119 According to the 2011
General Household Survey (GHS), persons with disabilities accounted for 5.2 per cent of the
total population, which equates to 45,345,000 persons with disabilities in South Africa. On the
other hand, in 2011 the World Bank estimated that 18 per cent of the total population lives with
some form of disability in South Africa.120 The above figures demonstrate how the differing
approaches to disability may influence the results obtained in a particular study.121
As can be observed, in the South African context data on disability is primarily drawn from the
national census and household surveys (Statistics South Africa).122 This has its own limitations
and often is unable to give a true reflection of actual prevalence.123 First, the results emanating
employment or profession the means needed to enable him or her to provide for his or her maintenance.’ In this manner, the Act puts emphasis on the impairment of the individual and fails to acknowledge the external barriers that persons with disabilities face in their daily lives. Chilemba (2014) 190. 115 WPRPD (2015) 16–17. 116 Chilemba (2014) 253. 117 Statistics South Africa (Stats SA) Census 2001 Prevalence of Disability in South Africa (2005) 1. 118 Stats SA Census 2011 Statistical Released P0301.4 (2012) 46. 119 Wiid (2015) 53. 120 WHO & World Bank World Report on Disability (2011) Technical Appendix A. 121 Wiid (2015) 53. 122 WPRPD, 23. 123 WPRPD, 23.
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from these difference sources are not comparable since different techniques and criteria are
used to establish disability prevalence. This in turn makes it hard to get an accurate picture of
the number and type of children with disabilities in South Africa or to monitor variations in a
given period of time.124 Secondly, the reliability of the findings of the census and GHS have
been questioned because self-reporting methods were used to classify disability. This may thus
be affected by factors such as social and cultural understanding of disability for a given age
category. This can be attributed to the restrictions on the number and type of questions that can
be asked; language and other barriers such as traditional beliefs attached to disability; and the
fact that these surveys are often carried out through substitute responses, where one family
member may have to respond on behalf of the entire family.125 A case in point is the 2011
national census, where there were concerns that psychosocial, neurological or emotional
impairments were not recognised.126 In addition, the data collected on disability from the
census showed that questions relating to ‘general health and functioning’ were posed to
households, while persons in institutional care and boarding facilities were excluded.127 The
data collected by Statistics South Africa does not include children below the age of five.128
This is an indication that where data are available, they are not comprehensive as they do not
include all children with disabilities.129 Similar weaknesses were highlighted in relation to the
set of questions used for the 2011 GHS130 which did not provide child-specific prevalence rates
for reported disability.131 In addition, the GHS were based on a specific sample sizes which is
124 ACPF Children with disabilities in South Africa: The hidden reality (2011e) 12. 125 WPRPD, 23. 126 The Washington Group set of questions were used in 2011 National census (paras 7–4). 127 Stats SA Census 2011: Profile of Persons with Disabilities in South Africa 24; The Right to Education for Children with Disabilities Alliance ‘Alternative report to the UN Committee on the Rights of Persons with Disabilities in response to South Africa’s baseline country report of March 2013 on the UN Convention on the Rights of Persons with Disabilities, with particular reference to the provisions of article 24’ (2017) available at http://bit.ly/36xsisJ (accessed 15 August 2016), para 74(c). 128 ARC – CRSA (2017) para 69. 129 ARC – CRSA (2017) para 69. 130 The Washington Group set of questions were used for the 2011 GHS, with the same shortcomings mentioned above. Stats SA General Household Survey 2011 (paragraphs 15–19). 131 The Right to Education for Children with Disabilities Alliance (2016) 18.
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too small to adequately measure disability and excluded children who are below the age of five
years.132 As such, the disability data in these surveys should be treated with caution.133
In Ethiopia, the overall availability of reliable and disaggregated data on disability in Ethiopia
indicates that the most recent available data in relation to the number of persons/children with
disabilities in the country is the 2007 Population and Housing Census. The census found that
there are only 805,492 persons with disabilities in Ethiopia (1.17 per cent of the population).134
The children’s share of this figure is 283,606.467.135 The estimate of the Census has, however,
been questioned by commentators in the field of disability who argue that the number of
persons with disabilities in the country is much higher.136 The reason for the underestimation
of the number persons with disabilities by the national census lies in the general lack of
awareness of disability-related issues among those involved in the census data collection and
analysis, the narrow definition of disability employed in the census, and the way the census
questions were framed.137 In this respect, it is appropriate to point out that except for the term
‘persons with disabilities’ in the 2008 employment legislation,138 there is no legal definition of
disability which is applicable to children with disabilities. Similar to the case in South Africa,
a definition of disability is found in the policy framework, whereby the CRPD’s description
132 CRC Committee, List of issues in relation to the second periodic report of South Africa, Addendum, Replies of South Africa to the list of issues* (UN Doc CRC/C/ZAF/Q/2/Add.1, 2018), para 185 133 CRPD Committee, Consideration of Reports Submitted by States parties under article 35 of the Convention, Initial reports of State parties due in 2009, South Africa (2015) (CRPD/C/ZAF/1), para 1. 134 Central Statistics Agency (CSA) The 2007 Population and Housing Census of Ethiopia: Statistical Report at Country Level (2008) 169-237. 135 CSA (2008)169–237. 136 Sida (2014) 1; ILO, OHCHR, WHO, et al. ‘Promoting social inclusion of persons with disabilities in Ethiopia’ (undated) 2 available at http://bit.ly/2s198wt (accessed 14 November 2018). 137 The definition used to describe persons with disabilities in the 2007 Census excluded some category of persons with disabilities as its scope of identification was limited to physical and mental disabilities. The question used in the Census reads as follows: ‘Does (name) have a problem of seeing, hearing, speaking and/or standing/walking/seating, body parts movement, functioning of hands/legs or mental retardation or mental problem or other mental or physical damage?’ ILO, OHCHR, WHO, et al. ‘Promoting social inclusion of persons with disabilities in Ethiopia’ (undated) 2 available at http://bit.ly/2s198wt (accessed 14 November 2018). 138 Article 2 (1) of the employment Right proclamation no. 568/2008 reads as follows: ‘Person with disability means an individual whose equal employment opportunity is reduced as a result of his physical, mental or sensory impairments in relation with social, economic and cultural discrimination’.
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of disability is adopted in National Plan of Action for Persons with Disabilities (2012-2021).139
Compared to the 1995 national census report, the 2007 data indicate a decrease in the number
of persons with disabilities in the country.140 On the other hand, in 2011, the World Report on
Disability estimated that 17.6 per cent of the total population of Ethiopia, or more than 14.4
million people, had some form of disability.141 A recent report estimates that 7.8 million of
people live with some form of disability in Ethiopia of which 30 per cent are estimated to
represent children and youth under the age of 25.142 Conflicting reports seem to be evident at
on the international scene. Since various sources cite different figures for the number of
population with a disability even within similar time frames, it is unlikely that any statistics
can be treated with certainty.
In relation to data in the context of alternative care, the Guidelines for Periodic Reports require
states to report on the number and percentage of children separated from their parents who are
living in institutions or in foster homes as well as the duration of placement and frequency of
its review;143 children reunited with their parents after a placement;144 and children in domestic,
intercountry and kafala adoption programmes disaggregated by age and, where relevant,
information on the country of origin and country of adoption of the children concerned.145 In
reporting on article 23 of the CRC, states have to specify the number and percentage of children
with disabilities who are living in institutions or outside their families, disaggregated by age or
139 Ministry of Labour and Affairs (MOLSA) National Plan of Action of Persons with Disabilities (2012-2021) (2012) 1. 140 MOLSA Developmental Social Welfare Policy (1996) 59. 141 WHO & World Bank (2011) Technical Appendix A. 142 CSA Household Consumption and Expenditure Survey 2015/16 and Ethiopian Socio-Economic Survey (ESS) 2015/16 (2019) as cited in UNICEF & Ministry of Finance National Situation Analysis of Children and Women in Ethiopia (2019) v. 143 CRC Committee, Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under Article 44, paragraph 1 (b), of the Convention on the Rights of the Child (UN Doc. CRC/C/58/Rev.3, 2015) (hereafter Treaty-specific guidelines (2015) annex, para 13(d). 144 CRC Committee Treaty-specific guidelines (2015) annex, para 13(e). 145 CRC Committee Treaty-specific guidelines (2015) annex, para 13(f).
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age group, sex, location (rural or urban area), minority or indigenous group, ethnicity, religion,
nature of disability and any other category considered appropriate.146
Data comprehensive and disaggregated enough to capture not only the ‘stock’ but also the
‘flow’ of the children from and to the alternative care system over the whole period of
childhood and into adulthood is necessary.147 As widely observed, disaggregated data on
children in alternative care is prerequisite for informing government policy and practice in
support of family strengthening and de-institutionalisation.148 This also speaks to the suitability
principle that informs the subsequent de-institutionalisation of children; effective provision of
alternative care for children deprived of their family environment; and provision of
reunification services where appropriate.149 The reason for capturing the early indicators of
risks faced by vulnerable groups of children including children with disabilities is to enhance
service provision, establish and improve monitoring mechanisms, and systematically address
the root causes of the separation from family and placement in alternative care.150
In South Africa, the data necessary to inform policy and practice in relation to children in
alternative care is lacking.151 Even though some data exist on the number of children in some
forms of alternative care, it is not disaggregated and does not give a complete picture of the
situation of children.152 Across all sectors of government institutions, there are challenges with
146 CRC Committee Treaty-specific guidelines (2015) annex, paras 1 and 17(b). 147 Moestue H Data collection on children in alternative Care in Eastern Europe and Central Asia Summary Report of TransMonEE 2014 Country Analytical Reports on Children in Alternative Care (2016) available at http://bit.ly/39NZz4Q (accessed 6 February 2018) 16. 148 Petrowski N, Cappa C & Gross P ‘Estimating the number of children in informal alternative care: challenges and results’ (2017) 83 Child and Abuse Neglect, The International Journal 389; Arisi C & Christensen Z The Care of children in data: Evidence, gaps and opportunities for change in the SDGs (2017) 6. 149 Petrowski et al. (2017) 389; Arisi & Christensen (2017) 6. 150 Petrowski et al. (2017) 389; Moestue (2016) 16–7. 151 ARC-CRSA (2015) para 132. This is also a concern raised by the ACERWC in its Concluding Observation on the second periodic report of South Africa. The ACERWC expressed its concern on the unavailability of disaggregated data on family environment and alternative care measures. 152 ARC-CRSA (2017) para 208; ARC-CRSA (2016) para 71–3; Van der Walt G (2018) 628–29.
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lack of disaggregation of data and statistics pertaining to disability.153 This is also evident in
relation to data in respect of the number and circumstances of children with disabilities in
alternative care, where little is known about patterns of admissions or the characteristics of the
children with disabilities before, during or after placement in institutions, and even less is
known about those in other settings.154
In Ethiopia, too, statistics are hindered by various factors. For instance, there is a paucity of
data on the circumstances and living arrangements of vulnerable children such as children with
disabilities.155 Various sources give conflicting estimates on the number of children placed in
alternative care.156 The uncertainty about the number of children deprived of their family
environment – and disaggregated by age, sex, type and severity of disability, among other
things – is unfortunate. The latest periodic report of Ethiopia to the CRC Committee claims
that the number of orphaned children with disabilities is 232,585.157
Moreover, in Ethiopia the number, location and type of child-care providers in the country is
unknown,158 as is the status of agencies providing a range of community and family-based
alternative care services.159 A major challenge that has been cited as hindering informed
153 DWCPD Department of Women, Children and People with Disabilities Baseline Country Report to the UN on the Implementation of the Convention on the Rights of Persons with Disabilities: First report to the United Nations – Final Draft (unedited version) (2013), para 391. 154 The data also do not give a clear picture of the number of children with disabilities as well as the nature of their disability in institutional care as the data are not disaggregated by disability, age, sex, and geographical location. CRC Committee, List of issues in relation to the second periodic report of South Africa, Addendum, Replies of South Africa to the list of issues* (UN Doc CRC/C/ZAF/Q/2/Add.1, 2018), paras 148–52; ARC-CRSA (2016) para 72. 155 National Guidelines, 5–6. 156 Based on UNICEF’s 2013 report, an estimated 8,620 children find themselves in 225 child-care institutions. UNICEF’s report states that 1,529 children were deinstitutionalised in 2011, of whom 326 were reunified with their birth parents or extended family, 272 were placed in foster care, and 795 benefited from domestic adoptions. International Social Service (ISS) ‘Country factsheet for the CRC: Ethiopia’ (2014) 2 available at http://bit.ly/2tCfGSq (accessed 23 July 2016). The government’s periodic report to the CRC, on the other hand, states that there are 149 child-care institutions accommodating 11,920 children and that 8,735,467 children had benefited from community-based child care programmes in the last five years. MOWCYA (2012) 19. 157 MOWCYA (2012) 52. 158 FHI/Ethiopia & CIFF (2008) 3. 159 Tadele G, Ayode D, Kifle W Assessment of community and family-based alternative child-Care services in Ethiopia (2013) 7 available at http://bit.ly/2N05cmV (accessed 26 April 2015).
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intervention is the absence of information on the work of agencies (private and governmental)
providing alternative care services in the country.160 In the absence of such data, very little is
known about the scale and characteristics of these agencies and the quality and type of services
they provide.161 There is also a lack of comprehensive data on best practices as well as
challenges faced by these agencies.162
In view of the above, it is evident that there are gaps in the data on the number of children with
disabilities in general and children with disabilities in alternative care in particular in South
Africa and Ethiopia. A look at the census results in both countries indicates that there are
definitional problems due to the lack of a uniform definition of disability and uniform criteria
to establish disability prevalence. Hence, data on disability is limited in their reliability in
giving a true depiction of the number of children with disabilities in the country. Furthermore,
statistics on children with disabilities in alternative care in the two countries do not give the
full picture as they are not disaggregated by disability, gender, age, sex, reasons for placement,
and length of stay. The provision of tainted data does not offer a good platform on which to
engage the principles of necessity and suitability – in practice, these statistics impede efforts to
ensure the suitability of alternative care for children with disabilities. In respect of Ethiopia,
positive steps are being made in setting up an information management system (IMS) that
allows data to be disaggregated using nationally applicable indicators covering all rights
guaranteed by the CRC;163 the IMS includes a database on children in alternative care.164
Moreover, although the Sustainable Development Goals (SDGs) do not have a specific goal or
target that deals with children deprived of their family environment or alternative care, the
160 Tadele et al. (2013) 7. 161 Tadele et al. (2013) 7. 162 Tadele et al. (2013) 80. 163 Teka et al. (2015) 85. 164 ISS (2014) 2.
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process of gathering data for some of the goals, such as Goal 10 (reduced equality) and Goal 1
(no poverty), can potentially assist in having disaggregated data on children with disabilities
and alternative care. For instance, the process of gathering data on the implementation of Goal
1 could play a role in identifying the number of children with disabilities who are at risk of
losing parental care.
5.2.4 Financial and human resources
Recognising that states differ in economic conditions, the UN Guidelines expect states to
allocate financial resources to alternative care to the ‘maximum extent’ of their available
resources.165 States are further bound to implement the right to alternative care of children
including children with disabilities to ‘the maximum extent of their available resources’.166 The
Committee expressed its concerns when reviewing states’ report over the inadequacy of budget
allocated to children’s rights and emphasised that giving priority to the rights of children in
budgets at all levels of government ensures the realisation of those rights and contributes to
‘long-lasting positive impacts on future economic growth, sustainable and inclusive
development, and social cohesion’.167 In its General Comment No. 19, the Committee offers
guidance on budgeting for children’s rights in each of the four stages of the public budget
process: planning, enacting, executing, and following-up.168 Moreover, it has emphasised on
the need for a continuous assessment of the effects of public budgets on different groups of
children and to make sure that ‘budget decisions lead to the best possible outcomes for the
largest number of children, paying special attention to children in vulnerable situations’.169
165 UN Guidelines, para 24. 166 CRC, arts 4 of the CRC and 4(2) of the CRPD. See also s 3(4) of Chapter 3 of this thesis for discussion of the state’s obligations in respect of the right to alternative care of children. 167 CRC Committee, General Comment No.19 ‘Public budgeting for the realization of children’s rights’ (2016) (hereafter CRC, Committee, GC No. 19 (2016) para 12. 168 CRC, Committee, GC No. 19 (2016), paras 64–111. 169 CRC Committee, GC No. 19 (2016) 59.
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Additionally, in relation to budgeting and the rights of children with disabilities, the CRC
Committee in its General Comment 9 further recommends that states pay particular attention
to children with disabilities and their survival and development by allocating budget earmarked
for programmes tailored to their needs and promoting their inclusion in society through the
framework of international cooperation.170
Ensuring that there are adequate available financial resources to support the provision of
alternative care would necessitate ensuring that national policies and programmes on
alternative care are costed and resources are allocated to their effective implementation.171 In
addition, priority has to be given to funding new models of family-based alternative care to
support the gradual elimination of large-scale institutions as well as ensuring that family-based
care providers such as foster parents have access to financial assistance, support and training
to care for children with disabilities.172 In circumstance where separation is warranted and
placement in alternative care becomes unavoidable, ensuring the suitability of alternative care
in respect of financing of alternative care necessitates that financial resources are allocated to
ensure that not just the physical needs of children with disabilities are met but also their
psychosocial well-being.173
Furthermore, the CRC Committee has emphasised in cases of decentralisation and privatisation
of services, the State Party remains the primary duty bearer to ensure that there is sufficient
allocation of resources to children with disabilities and strict standards in place for service
delivery.174 The implication of this in the context of alternative care is that states have to ensure
that private institutions and other forms of alternative care settings run by private organisations
170 CRC Committee GC No. 9 (2006) para 16. 171 Cantwell et al. (2012) 106. 172 Cantwell et al. (2012) 106. 173 Cantwell et al. (2012) 104. 174 CRC Committee GC No. 9 (2006) para 20.
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conform to the standards of the CRC. This is important for the alternative care of children with
disabilities, mainly because in most Africa countries, often the state is not the main source of
financing in relation to alternative care.175 The way that alternative care is financed has
implications for the type and quality of alternative care provided to children. This is mainly
because funders have the upper hand in choosing what form of alternative care provision to
make available (family-based or residential) and the quality of care provided.176 Funders also
determine the number of children admitted into institutions, including those who are
unnecessarily placed.177 For instance, it has been noted that in economically disadvantaged
countries, there is major reliance on institutions to care for children and these institutions are
fully or partially financed from private sources abroad.178 Therefore, given that the state is the
primary duty-bearer in ensuring the implementation of the rights set forth in the Convention, it
is important that the states take responsibility and be accountable for alternative care for
children who need it and also take measures to reinforce their authority and oversight over the
alternative care system.179
In addition to the obligation in international standards, the government is, according the section
7(2) of the South African Constitution, required to give effect to all the rights in the Bill of
Rights including children’s rights to alternative care. One of the measures that the government
is expected to undertake to fulfil its obligations under the Constitution and international
standards is to allocate adequate budgets so that the required conditions and services to fulfil
these rights are available. The Children’s Act further states that the provincial Members of the
Executive Council (MECs) for social development ‘must’ provide and fund child protection
175 Chaitkin S, Cantwell N, Gale C, et al. Towards the right care for children: Orientations for reforming alternative care systems Africa, Asia, Latin America (2017) 19. 176 Chaitkin et al. (2017) 25. 177 Chaitkin et al. (2017) 25. 178 Cantwell (2015) 272–73. 179 Chaitkin (2017) 25.
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services (including foster care placement and supervision, and adoption)180 and CYCCs.181
Section 4(2) of the Act further obligates organs of state in all spheres of government to take
reasonable measures to the maximum extent of their available resources to realise the
objectives of the Act. Moreover, the Children’s Act requires national and provincial ministers
of social development to ensure that children with disabilities have equal access to these
services.
However, in South Africa one of the challenges pertaining to the alternative care system is the
poor financing of various forms of alternative care including foster care, cluster foster care and
CYCCS.182 There is a general lack of information and monitoring on financial resource
allocation for services to children with disabilities, which poses a major problem for the
monitoring and protection of the rights of children with disabilities.183 Moreover, in practice
the government has not been meetings its legal obligations as there is inadequate costing and
allocation of child care and protection services.184 Generally, state subsidies are also said to be
insufficient to meet the Children’s Act norms and standards.185 Moreover, subsidies paid by
the government to registered CYCCs vary from province to province, which violates section
4(1) of the Act which requires uniformity in implementation of the Act.186
In the same vein, in the Ethiopian context there is a dearth of information and data relating to
the budget allocated to children in the most vulnerable groups of society, including children
180 Children’s Act, s 105. 181 Children’s Act, s 193(1). 182 Van der Walt (2018) 622. 183 DSD, DWCPD and UNICEF Children with Disabilities in South Africa: A Situation Analysis: 2001-2011 (2012) 76. 184 ARC-CRSA (2015) paras 15-8; Jamieson (2014) 238; Bower (2014) para 121. 185 Jamieson (2014) 238. 186 Jamieson (2014) 238; Bower (2014) para 121; Budlender D and Proudlock P Are children’s rights prioritised at a time of budget cuts? Assessing the adequacy of the 2013/14 social development budgets for funding of Children’s Act services (2013) Cape Town: Children’s Institute, University of Cape Town available at http://bit.ly/2T1TzPZ (accessed 13 November 2018) 20.
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with disabilities.187 To this end, the need to establish a well-defined, comprehensive and
participatory budgeting process with specific indicators to better monitor and evaluate the
sufficiency and efficacy of the allocation process has been stressed.188 In respect of financing
of alternative care, the government is not the main source of funding of alternative care
provision.189 In fact, the government is in charge of running only 3 per cent of 85 institutions
in the country, with NGOs running 80 per cent and faith-based organisation operating 16 per
cent.190 Prior to the recent banning of adoption, it has been noted child-care institutions were
heavily dependent on funds from adoption agencies, with half of the institution not having
proper and accessible financial accounting systems in place. The decline in donor funding may
have a negative impact on alternative care provision in the absence of sufficient state funding.
Inadequate financing of alternative care has also impacted the quality of care provided to
children with disabilities in alternative care settings, where the majority of institutions do not
have services that meet the needs of children with disabilities placed in their care. Moreover,
only basic services are provided for children placed in those settings, while the psychological
and emotional needs and special services for the care of children with disabilities are side-
lined.191 The failure to adequately finance alternative care provision has meant that institutions
providing alternative care do not always apply the principle of the best interests of the child
consistently when making decisions affecting children.192
In respect of financial support to caregivers of children with disabilities, in South Africa the
government provides financial assistance to foster parents caring for children with disabilities
187 To this end, the CRC Committee urged the government of Ethiopia to allocate adequate resources (human, technical and financial) in all areas concerning children, and to pay particular attention to the most vulnerable children. CRC Committee Concluding Observations: Ethiopia (UN Doc. CRC/C/ETH/CO/4-5, 2015), paras 12 and 13(a). 188 CRC Committee Concluding Observations: Ethiopia (UN Doc. CRC/C/ETH/CO/4-5, 2015), para 13(b). 189 FHI et al. (2010) 31. 190 FHI et al. (2010) 31. 191 FHI/Ethiopia & CIFF (2008) 205. 192 Lemma M ‘Ethiopia: at what level is child protection services’ (2012) available at http://bit.ly/2NhEiHt (accessed July 2015).
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in the form of the Care Dependency Grant (CDG).193 A child with a disability who is cared for
in a state-funded institution on a 24-hour basis for a more than six months is not eligible for
the CDG.194 However, despite a steady growth in access to the CDG for children with
disabilities, considerable numbers of children who are eligible for the grant are not receiving
it.195 This is mainly due to the non-alignment of the Social Assistance Act with its
accompanying regulations196 and practical challenges in its implementation.197 According to
section 7(a) of the Social Assistance Act 13 of 2004, a child is eligible for the CDG if he or she
requires permanent care or support services, whereas regulation 8 defines an eligible child as a
‘care-dependent child’.198 This is problematic in so far as ‘care-dependent child’ is defined in
the Act as a one ‘who requires and receives permanent care due to his or her severe mental or
physical disability’.199 In doing so, regulation 8 reinstates the severity requirement although
this requirement was removed from the eligibility criteria in the principal Act.200 Thus, the
inconsistency between the Social Assistance Act and the regulation201 creates another challenge
193 Section 7(a) of the Social Assistance Ac 13 of 2004 (hereafter Social Assistance Act). See also Martin P, Proudlock P & Berry L ‘The rights of children with disabilities to social assistance: A review of South Africa’s Care Dependency Grant’ Proudlock P (ed) South Africa’s Progress in Realising Children’s Rights: A Law Review (ed) (2014) 87–8; See also Khosa and others v Minister of Social Development and others, where the constitutionality of certain provisions of the Social Assistance Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997, were alleged to constitute an infringement of the children’s rights and equality and non-discrimination obligation set forth in ss 28 and 9 of the Constitution, respectively. The Constitutional Court extended the right to social security to the children of permanent residents (in terms of the Care Dependency Grant and Child Support Grant). Khosa and others v Minister of Social Development and others (2004) (6) BCLR 569 (CC). The responsibility of payment of grants lies on the DSD. However, the DSD has delegated this responsibility to the South African Social Security Agency (SASSA). Skelton A ‘Children’ in Currie I & De Waal J The Bill of Rights Handbook 6 ed (2013) 609. 194 Social Assistance Act, s 7(b). 195 ARC-CRSA (2015) para 161. 196 Social Assistance Act 13 of 2004: Regulations Relating to the Application for and Payment of Social Assistance and the Requirements or Conditions in Respect of Eligibility for Social Assistance. Government Gazette 31356, Notice R. 898 (22 August 2008). 197 ARC-CRSA (2015) para 161. 198 Martin et al. (2014) 90 199 Social Assistance Act, s 1. 200 Martin et al. (2014) 90. 201 The South African Social Security Agency (SASSA) qualification states that ‘the caregiver must submit a medical/assessment report confirming that the child is severely disabled and receives permanent care or support services …’ Therefore, it is clear that the phrase ‘permanent care’ is used as a requirement to be eligible for CDG rather than as an alternative to ‘support services’. This interpretation excludes children with moderate to mild disabilities and children who do not require permanent care but do require support services from qualifying for the CDG. CDG criteria booklet (SASSA 2015). Martin et al. (2014) 91.
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in complying with the suitability principle, as the level of support given to foster carers in their
caregiving role to children with disabilities may have an a direct impact on the sufficient
availability of foster carers for such children.
In respect of Ethiopia, the Growth and Transformation Plan 2015/2016–2019/2020 (GTP II)202
identifies persons with disabilities as one of the focus groups who are eligible for special
support in the form of social protection.203 Additionally, the National Social Protection Policy
recognises the need to strengthen services for persons with disabilities.204 Ethiopia also has a
National Action Plan for persons with disabilities 2012–2021. However, despite containing a
number of action priorities in respect of various sectors, the action plan’s provisions targeting
children with disabilities are inadequate, with the exception of those to do with education.205
Despite these advances, the social protection of children with disabilities or those caring for
them in Ethiopia is limited,206 and there is no indication that the government offers any specific
support services for foster carers of such children. The CRPD Committee has expressed
concern about the limited programmes aimed to offset disability-related expenses and about
the fact that the disability assessment for eligibility of receiving financial assistance is based
on the medical approach.207
The foregoing discussion has established that states have a duty to allocate resources to provide
for alternative care in accordance with the available resources. It is argued that the governments
of South Africa and Ethiopia are not meeting their international child-rights obligations in that
202 The Growth and Transformation Plan II (GTP), Ethiopia’s second five-year development plan, aims to aid the transformation of the economic structure and maintain enhanced growth to reach the national vision of becoming a low-middle-income country by 2025. 203 UNICEF & Ministry of Finance (2019) 14. 204 UNICEF & Ministry of Finance (2019) 14. 205 UNICEF & Ministry of Finance (2019) 14. 206 UNICEF & Ministry of Finance (2019) 14. 207 CRPD Committee Concluding Observation: Ethiopia (UN Doc. CRPD/C/ETH/CO/1, 2016), para 61.
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they are failing to adequately finance the provision of alternative care services to the ‘maximum
extent’ possible. Current funding arrangements for alternative care provision in the countries
indicate inadequacy to ensure the suitability of alternative care. In respect of South Africa,
although the government is the main source of funding of alternative care provision in the
country, the funding is inadequate to ensure the suitability of alternative care and the safety,
development and well-being of children in general and children with disabilities placed in
alternative care in particular.
Even though there is an additional layer of protection to children with disabilities in the context
of alternative care in South Africa through the provision of financial assistance to foster carers
of children with disabilities, there are challenges with the disability assessment, which is based
on the medical approach to disability. This concern has also been raised in relation to Ethiopia
by the CRPD Committee. Hence, a disability assessment which is based on the human rights
model of disability that allows children with disabilities to qualify for the CDG regardless of
the severity of their disability is a necessary step toward ensuring the availability and
inclusivity of suitable family-based alternative care options such as foster care in a non-
discriminatory manner.
Ethiopia faces further challenges in regard to the government’s lack of power to shape the
quality and quantity of services provided to children in institutions, as it is not the main source
of funding of alternative care provision in the country. This has in turn undermined its ability
to develop effective interventions by way of redirecting financial sources to the development
of family-based alternatives. The lack of government control of financing alternative care in
respect of Ethiopia may further result in the over-investment of already scarce resources in
establishment and maintenance of institutions. This impacts on the quality of care provided in
community-based care due to lack of financial and material resources, which results in
shortages of qualified personnel and insufficient provision of basic services to children who
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are placed in such settings.208 As the primary duty-bearer, the government needs to take over
responsibility and accountability for the provision of alternative care for children and take
concrete measures to reinforce its authority and oversight over the alternative care system. The
need to improve the social protection available to caregivers of children with disabilities to
avoid their institutionalisation and promote the availability of potential caregivers is also
notable. This is particularly important as the experience of other countries shows that
enhancing the capacity of foster care families and services available to them to effectively care
for children with disabilities is crucial to ensure that such children receive appropriate care.209
It is further recommended that governments avail resources to offset disability-related costs
such as medical care, wheelchairs and day-care services to increase the availability of foster
care services for children with disabilities as well as to facilitate their independence.210
In respect of South Africa’s human resources, the CRPD requires states to promote training on
the Convention for those working with children with disabilities.211 This is important for the
alternative care of children in general and children with disabilities in particular, as it places an
obligation on states to ensure that individuals responsible for the care of children with
disabilities in alternative care settings run by private organisations including NGOs and faith-
based organisations are given adequate training that will allow them to appropriately care for
them and be aware of their rights.
In respect of South Africa, the government has also acknowledged in its baseline country report
to the CRPD Committee on the implementation of the Convention that the training of
208 Assefa M The Ban on Intercountry Adoption in Ethiopia (unpublished LLM thesis, Addis Ababa University, 2018) 55–56. 209 A study has revealed that in countries such as Georgia, Moldova and Serbia, efforts to avoid the institutionalisation of children with disabilities have been successful due to increased support for the development of family-based care including foster care and through building the capacity of services and caregivers. Family for Every Child (2015) 33. 210 Family for Every Child (2015) 33. 211 CRPD, art 4(1)(i).
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caregivers of children with moderate to severe intellectual or physical disabilities is lacking.212
As noted in the previous chapter, the system is ill-equipped to provide alternative care to
children with behavioural disorders due to a lack of trained caregivers in CYCCs. This is
exacerbated by the dearth of skilled practitioners including social workers, social auxiliary
workers and child and youth care workers, which poses a challenge to the effective
implementation of the right to alternative care.213 The shortfall in qualified social service
professionals plays a significant role in creating implementation gaps.214
The National Guidelines do not specify the level of training that caregivers are expected to
have to work in institutions or to become foster carers, and do not specifically require child-
care organisations to ensure that caregivers have the necessary capacity and training to respond
to the needs of children with disabilities. This is one area of non-alignment with international
guidelines related to the requirement to devise ‘appropriate criteria for assessing the
professional and ethical fitness of care providers for their accreditation, monitoring and
supervision’.215
Furthermore, there is a lack of expert staff working in the field of alternative care in Ethiopia.216
The problem is compounded by the high workload and turnover of staff and low personnel
quality in child-care agencies.217 Capacity shortages restrict agencies’ ability to perform their
supervisory and post-placement follow-up role.218 There is general unfamiliarity with the
212 DWCPD (2013) para 375. 213 Loffell J, Allsopp M & Atmore E ‘Human resources needed to give effect to children’s rights to social services’ in Proudlock P, Dutschke M, Jamieson L, et al (eds) South African Child Gauge 2007/2008 (2008) 48. DSD Situational Analysis Report on the Social Service Workforce Servicing Children (2012) 60. The 2010 CASE survey found that more than a third of CYCCs had an insufficient number of child and youth care workers. CASE (2010) 53. 214 Bower (2014) para 10. One of the reasons for the shortage of social workers is the increase in the number of foster care placements, which has had an impact on the workload of already scarce social workers, who now spend the majority of their time attending to foster placements with relatives, which is part of the formal care system. Loffell et al. (2008) 51; Van der Walt (2018) 622. 215 UN Guidelines, para 55. 216 Tadele et al. (2013) 80. 217 Tadele et al. (2013) 80. 218 Tadele et al. (2013) 81.
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National Guidelines on Alternative Care and the principles of necessity and suitability.219
Organisations providing community-based alternative child care also suffer from shortages of
qualified caregivers and staff.220 This has been due in part to the restriction in the now-repealed
CSO law that required agencies to spend only 30 per cent of their total income for
operational/administration purposes which restricted the ability of the agencies to attract skilled
personnel.221 This has been cited as one of the barriers restricting the agencies’ ability to
improve their human resources capacity222 and limiting the geographical reach of local CSOs
and NGOS, particularly in the rural areas, where substantial numbers of children with
disabilities are located.223
In view of the above, it can be observed that both countries face challenges in respect of human
resources in the context of alternative care. Research shows that robust and holistic capacity-
building of the child welfare workforce through training, provision of technical assistance and
practical support as well as supervision aimed at enhancing skills and changing attitudes and
behaviours facilitates successful domestic, family-based solutions for the care of children with
disabilities deprived of family environment.224 Therefore, investing in building the human
resources of the wider community by developing skills at all levels is a necessary component
of an effective foster care process.225 It is crucial to provide the appropriate training to foster
carers of children with disabilities, including in child development and attachment, children’s
rights and child well-being, and to provide necessary support services such as day care and
respite care to meet the needs of children with disabilities.226 This process will ensure that the
219 Assefa (2018) 55. 220 Assefa (2018) 55. 221 See section 5(2)(5) of this chapter for discussion of the proclamation. 222 Tadele et al. (2013) 80. 223 Birhane (2012) 100. 224 Family for Every Child (2015) 34. 225 Family for Every Child (2015) 20. 226 Cantwell et al. (2012) 92.
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lack of expertise and technical and practical support does not lead to the unnecessary
institutionalisation of children with disabilities deprived of their family environment.
5.2.5 The role of civil society organisations (CSOs)
Although the primary responsibility to ensure that the rights of children with disabilities in
alternative care are protected is on the state, the effective implementation of such right in
accordance with international standards requires a concerted effort towards a common goal
among all stakeholders involved in alternative-care service provision.227 It is important to foster
cooperation between and among government and private institutions to enhance information-
sharing and networking to offer optimal protection and the most appropriate alternative care
for every child in accordance with international standards. This entails that the state establish
effective working partnerships with public providers of services as well as NGOs and private
providers including CSOs and faith-based organisations. To this end, states are required to
cooperate with the civil society in realising children’s rights and create an enabling
environment for CSOs to assist in the provision of services for children with disabilities in
accordance with the standards and principles of the Convention.228
In South Africa, provincial DSDs assign the delivery of the majority of services to children
mandated by the Children’s Act to non-profit organisations (NPOs).229 It is commendable that
the South African government funds NPOs, as this gives the state greater ownership and control
of the problems and the services. In Ethiopia where alternative care provision is primarily
externally funded, problems arising as a result of outsourcing services are perceived to be
beyond the reach of government. Although the South African government pays subsidies to
NPOs for the delivery of such services, the amount is inadequate to cover the actual cost of
227 UN Guidelines, para 5. 228 CRC Committee GC No. 9 (2006) para 25. 229 Sloth-Nielsen J & Kruuse H ‘A maturing manifesto: The constitutionalisation of children’s rights in South African jurisprudence 2007-2012’ (2013) 21(4) International Journal of Children’s Rights 654.
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services.230 Thus, NPOs face challenges in respect of inadequate funding and delays in payment
of funding that had been allocated to them to deliver child welfare and protection services.231
Hence, the NPOs are expected to secure the rest of the funding from non-government sources
to cover the additional cost of running alternative care facilities.232 In this regard, the need for
the government to cover the full cost of CSOs providing services to children to enable them to
pay reasonable salaries and to direct resources into maintaining and improving services has
been emphasised.233
There are also many NPOs that do not receive subsidies from the government for delivering
child welfare and protection services.234 This has led to weak sustainability of services, as
NPOs face challenges to secure funding from non-government sources.235 In respect of CSOs
working in the disability sector in South Africa, there have been challenges in relation to the
extent of funding and funding procedures.236 In a recent report, the department acknowledged
that NGOs working with children with disabilities receive limited support from government
and collaboration is poor.237 Moreover, there is a lack of knowledge about the type of services
to be provided for children with disabilities.238 NGO service provision to children with
disabilities has also been affected by factors such as global recession, which has led to a
significant decline in international funding.239
230 Bower (2014) para 26. A CASE survey in 2010 found that more than 90 per cent of registered CYCCs were run by non-profit organisations (NPOs). Similarly, the 2012 CASE survey of unregistered CYCCs found that most were run by NPOs. Jamieson (2014) 216. 231 ARC-CRSA (2015) para 20; DSD, DWCPD and UNICEF (2012) 77. 232 Jamieson (2014) 216. In addition to subsidy allocations from the DSD, NPOs sources of funding include philanthropic donor funding and private sector support. ARC-CRSA (2016) para 20. 233 Loffell et al. (2008) 51. 234 Loffell et al. (2008) 51; ARC-CRSA (2015) 7. 235 Loffell et al. (2008) 51; ARC-CRSA (2015) 7. 236 DSD, DWCPD & UNICEF (2012) 77. 237 ACPF (2011e) 32–3. 238 DSD, DWCPD & UNICEF (2012) 77. 239 ACPF (2011e) 32.
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In respect of South Africa, apart from the above challenges, the role of NPOs in the protection
and provision of alternative care services is further hampered by the exceptionally high staff
turnover rate, which stems from the fact that the government pays higher salaries to social
services practitioners in the public service than NPOs can afford to pay their practitioners.240
High staff turnover leads to weak sustainability and unreliable delivery of social services,
which negatively impacts children. NPOs in particular struggle to retain social workers trained
to work with children with disabilities (for instance, a social worker working with deaf children
needs to be trained in sign language to give counsel without requiring the presence of an
interpreter).241 The struggle to secure funding impedes organisations ability to extend the reach
of their services or forces them to cutback funding for projects.242
To illustrate the inconsistencies in the government’s attitude to children with disabilities, in
2010 a case was lodged against the Free State provincial DSD by the National Association of
Welfare Organisations and Non-Governmental Organisations (NAWONGO) on the unfairness
of the province’s funding policy for NPOs and delays in transferring funding allocated to
them.243 There was a great disparity between the amount allocated per month per child by the
government to state-run CYCCs and those run by NPOs (R6,750 and R2,000 per month per
child respectively).244 The application sought a review of the government funding policy to
NPOs in addition to the immediate payment of funding that had been allocated to them. The
Free State High Court ruled in favour of the NPOs and confirmed the unfairness and
unreasonableness of the government funding policy for service provision by CSOs.245 The
240 Loffell et al. (2008) 51. 241 DSD, DWCPD & UNICEF (2012) 80. 242 Proudlock P & Jamieson L Guide to the Children's Act no 38 of 2005 (2008). 243 National Association of Welfare Organisations and Non-Governmental Organisations and Others v the Member of the Executive Council for Social Development, Free State and Others. Free State High Court, 1719/2010 [2010] ZAFSHC 73 (5 August 2010) (hereafter NAWONGO and Others v MEC for Social Development and Others, (2010). 244 NAWONGO and Others v MEC for Social Development and Others (2010); Jamieson L (2014) 238. 245 NAWONGO and Others v MEC for Social Development and Others (2010), para 56; Jamieson (2014) 238.
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Court further noted in its ruling that the delegation of delivery of services to NPOs does not
alleviate the state of its constitutional and statutory obligations to provide care for vulnerable
children.246 Between 2011 and 2014, three further judgements were delivered on this case.247
In each of the subsequent judgements, the Court reviewed the revised drafts of the policy
submitted to it by the department and finally upheld the policy as constitutional in 2014.248
In the case of Ethiopia, various CSOs including international and national NGOs have an
extensive record of supporting and providing services to children deprived of their family
environment.249 CSOs have been directly involved in supporting families towards preventing
family break-up, supporting child headed households and providing foster care and institutional
care to children.250 CSOs play a major role in strengthening family-based alternative care by
working together with the relevant government institutions such as MOWCYA in promoting
‘foster care, recruitment of families, assessment of families and children, training of key actors
including foster families, and the matching process is an important element of a comprehensive
foster care system’.251 The role of CSOs in Ethiopia is, however, characterised by limited
outreach capacities and limited funding.252 Unlike NPOs in South Africa, child welfare NGOs
246 NAWONGO and Others v MEC for Social Development and Others (2010), para 47. 247 National Association of Welfare Organisations and Non-Governmental Organisations v MEC for Social Development (1719/2010) [2011] ZAFSHC 84 (9 June 2011); National Association of Welfare Organisations and Non-Governmental Organisations v MEC for Social Development, Free State (1719/2010) [2013] ZAFSHC 49 (28 March 2013) ; and National Association of Welfare Organisations and Non- Governmental Organisations v Member of the Executive Council for Social Development, Free State (1719/2010) [2014] ZAFSHC 127 (28 August 2014). 248National Association of Welfare Organisations and Non- Governmental Organisations v Member of the Executive Council for Social Development, Free State (1719/2010) [2014] ZAFSHC 127 (28 August 2014). 249 Save the Children International ‘Summary report on the need to strengthen foster care in Ethiopia’ (unpublished draft report; copy on file with author) (undated) 4. 250 Save the Children International ‘Summary report on the need to strengthen foster care in Ethiopia’ (unpublished draft report; copy on file with author) (undated) 4. 251 Save the Children International ‘Summary report on the need to strengthen foster care in Ethiopia’ (unpublished draft report; copy on file with author) (undated) 4. 252 Gilbert A ‘Community-based child care in Ethiopia vs. the individual centered model in the United States: A closer examination of family group decision making in child placement’ (2013) 33 Children’s Legal Rights Journal 359.
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do not receive organisational support and assistance from the government in the care of
children deprived of their family environment.253
Additionally, the major challenge that hampered CSOs was the now-repealed Charities and
Societies Proclamation No. 621/2009 (the Proclamation) in 2009. The Proclamation governed
the registration and regulation of non-governmental organisations and was regarded as one of
the most restrictive law of its kind in sub-Saharan Africa.254 As per the CSO Proclamation,
Ethiopian resident charities and societies and foreign charities were restricted from taking part
in activities pertaining to children’s rights and disability rights, among other things.255 This
restriction extended to local NGOs (Ethiopian Charities or Societies)256 if they received more
than 10 per cent of their funding from foreign sources.257 This is mainly due to reasons related
to foreign funding and nationality258 and is especially concerning in the economic context of
Ethiopia, where domestic funding is limited and NGOs are often dependent on foreign
funding.259 These funding restrictions resulted in the involuntary closure of many CSOs
operating in the country or to refrain from engaging in human rights and disability rights
advocacy by adjusting the scope of their work.260 The role of CSOs in monitoring and
advocating for the advancement of disability rights was limited by the Proclamation.261 The
253 Gilbert (2013) 359. 254 Mulat Y, Hopkins C & Liane N ‘Sounding the horn: Ethiopia’s civil society Law threatens human rights defenders’ (2009) Centre for International Human Rights, Northwestern University School of Law available at http://bit.ly/2SZoPzm (accessed 14 June 2018) 4. 255 Charities and Societies Proclamation No. 621/2009 of Ethiopia, art 14(5). 256 Charities and Societies Proclamation No. 621/2009 of Ethiopia, art 2(2) of the Proclamation defines Ethiopian Charities or Societies as ‘Charities and Societies that are formed under the laws of Ethiopia, all of whose members are Ethiopians, generate income from Ethiopia and wholly controlled by Ethiopians. However, they may be deemed as Ethiopian Charities or Ethiopian Societies if they use not more than 10 per cent of their funds which is received from foreign sources’. Emphasis added. 257 Charities and Societies Proclamation No. 621/2009 of Ethiopia arts 14(5) and 2(2). 258 Save the Children Sweden Desk review and analysis of literature on child protection systems in the Eastern Africa region: (Ethiopia, Kenya, South Sudan, Sudan, Rwanda, Tanzania and Uganda) (2012) 43–4. 259 Gilbert (2013) 359; Hailegebriel D ‘Restrictions on foreign funding of civil society: Ethiopia’ (2010) 12(3) International Journal of Not-for-Profit Law 21. 260 Gilbert (2013) 360; Save the Children Sweden (2012) 43–4; Abiye Y ‘Will Ethiopia’s civil society heal soon?’ The Reporter 19 January 2019 available at http://bit.ly/2ZYy5Fl (accessed 17 October 2019). 261 Sida (2014) 3.
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financial restriction contributed to the suspension of research and advocacy projects that could
have driven change in seeking the repeal of biased laws and enactment of new laws.262 The
budgetary constraints forced CSOs that worked in the rights of children and socio-economic
rights to shift to new areas or close down.263
The Proclamation has had a grave impact on the viability of organisations providing services
to children in general and children with disabilities in particular as these organisations found it
challenging to meet the requirements of the Proclamation and register and operate as Ethiopian
Charities and Societies.264 Given the poor economic circumstances of Ethiopia, adequate
funding from local sources could not be secured, negatively impacting the enjoyment the socio-
economic rights of children with disabilities.265 As a result of the restriction on soliciting
funding from foreign sources, numerous projects on the rights of children and persons with
disabilities had dwindled over the last decade.266
Moreover, as previously mentioned, the former CSO law prohibited CSOs from spending more
than 30 per cent of their total budget on ‘administrative costs’. The lack of definition for term
‘administrative cost’ in the Proclamation meant that the term could be construed to include
costs relating to the investigation and documentation of ‘human rights abuses, the provision of
free legal aid, advocacy, and other essential activities in the promotion and protection of rights
and freedom’.267
262 Abiye (2019). 263 Abiye (2019). 264 Save the Children Sweden (2012) 43–4. 265 Birhane (2012) 100. 266 Abiye (2019). 267 Abiye (2019).
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On a positive note, a new law governing CSOs has been adopted by the Ethiopian parliament
in 2019268 which lifts the financing restriction placed on CSOs by the previous proclamation269
and the associated status of CSOs as resident or foreign charities.270 The new Proclamation
deviates from the previous categorisation system, referring only to indigenous (local) and
foreign CSOs.271 Under the new law, CSOs are allowed to freely engage in advocacy and
human rights work.272 Moreover, the new Proclamation emboldens CSOs to engage in
advocacy and lobbying in regard to laws and policies which relate to their activities.273 The
new CSO law also decreases the administrative cost of CSOs from 30 per cent to 20 per cent
of their total income.274 The administrative costs are, however, more clearly defined in the
current CSO law and include salaries of administrative employees, rent, bank fees, and attorney
fees, among other things.275 Hence, through the revocation of the restrictive rules imposed by
the former proclamation, it is anticipated that the new CSO law will create a conducive
environment for organisations working in the field of human rights to discharge their critical
role of ensuring the promotion and protection of human rights.276
It is thus evident in both countries that stakeholders, including the state, NGOs and private
organisations, need to cooperate to ensure that children with disabilities receive alternative care
in accordance with the standards and principles of international standards.
268 Townsend D ‘Ethiopia’s new civil society law’ Include: Knowledge Platform on Inclusive Development Policies 11 March 2019 available at http://bit.ly/36C0HH6 (accessed 5 May 2019). 269 Organizations of Civil Societies Proclamation No. 1113/2019, art 63(1)(c) reads as follows: ‘Any organization shall have the right to solicit, receive and utilize funds from any legal source to attain its objective.’ 270 Hailou S ‘A Dawn of hope for resuscitated CSOs’ The Reporter 28 September 2019 available at http://bit.ly/2Qx0RK5 (accessed 17 October 2019). 271 Organizations of Civil Societies Proclamation No. 1113/2019, art 2(2) and (3). Townsend (2019). 272 Organizations of Civil Societies Proclamation No. 1113/2019, art 62(1) reads ‘An organization shall have the right to engage in any lawful activity to accomplish its objectives.’ 273 Organizations of Civil Societies Proclamation No. 1113/2019, art 62(4). 274 Organizations of Civil Societies Proclamation No. 1113/2019, art 63(2). 275 Organizations of Civil Societies Proclamation No. 1113/2019, art 63(2). 276 Anonymous ‘Does the revised Ethiopian Civil Society Proclamation deliver the promise of reform?’ The Reporter 16 February 2019 available at http://bit.ly/2Qup6bJ (accessed 17 October 2019)
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5.3 Conclusion
The chapter has critically assessed the administrative measures that have been undertaken by
South Africa and Ethiopia to implement the right to alternative care of children with
disabilities. The chapter has assessed whether those administrative measures are in keeping
with international standards as well as the UN Guidelines’ principle of ‘suitability’. It has
further observed that although both countries have taken administrative measures to ensure the
suitability of alternative care, these measures are, however, inadequate to ensure the effective
implementation of the right to alternative care of children with disabilities.
In South Africa, what has impeded the implementation of the right to alternative care of
children with disabilities and compliance with the ‘necessity’ and ‘suitability’ principle is the
DSD’s limited capacity to monitor facilities, resources and service provision to alternative care
facilities; the failure to timeously and regularly review and extend court orders; the lack of
coordination amongst stakeholders; the absence of up-to-date, reliable and disaggregated data
on disability as well as on children with disabilities in alternative care; the lack of a uniform
definition of disability; the shortage and high workload of social workers to conduct necessary
assessment of placements; inadequate allocation of funds to the provision of alternative care as
well as to CSOs who are providing the majority of alternative care services in the country; and
the lack of an independent child-rights monitoring body.
In respect of Ethiopia, the challenges hindering the effective implementation of the right to
alternative care of children with disabilities and ensuring the suitability of alternative care to
children with disabilities include the failure of the MOWCYA and MOLSA as well as their
regional counterparts to execute their monitoring and oversight role, which has resulted in most
child-care institutions’ contact with the relevant body being limited to reporting; lack of
coordination between relevant government institutions as well as between CSOs and
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government institutions responsible for the provision of alternative care services; absence of
up-to-date, reliable and disaggregated data on disability as well as on children with disabilities
in alternative care; the lack of a uniform definition of disability; lack of government control of
financing alternative care; lack of training of staff providing care for children in alternative
care settings on the rights of children and unfamiliarity with the National Alternative Care
Guidelines; and the lack of any significant activity pertaining to the rights of children with
disabilities in general and alternative care in particular by the EHRC.
Where there is no robust institutional framework to monitor and oversee the placement of
children with disabilities in alternative care, it becomes difficult if not impossible to ensure that
alternative care is done in keeping with the principle of suitability; that the principle of the best
interests of the child is applied consistently; and that the views of children with disabilities are
sought and given due regard or that they are supported with proper modes of communication
to express their views. The absence of proper oversight, supervision and monitoring of
alternative care settings also means that there is no process to ensure that private alternative
care providers are bound by the principle of non-discrimination.
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Chapter 6: Conclusion and Recommendations
6.1 Introduction
Chapter 1 gave a general overview of the study. It offered the contextual background, problem
statement and research questions. In addition, it unpacked the methodology, significance and
scope of the study. The background to the study demonstrated that, in principle, institutional
care is the most common form of alternative care provided to children with disabilities. The
chapter discussed the limited access to family-based alternative care for children with
disabilities in need of alternative care and the root causes for the excessive dependence on
institutional care as a means to care for children with disabilities. In connection with this, the
overwhelming evidence on the negative impact of institutionalisation on children’s survival
and development was presented. It was also established that children fare much better when
they are placed in a family-based alternative care setting and are as close to their own
community as possible. This preference for family-based alternative care for children with
disabilities deprived of their family environment is articulated in international and regional
human rights standards. In view of this, some reflections on the situation in Ethiopia and South
Africa were presented.
In determining whether the current international and domestic provisions for the alternative
care of children with disabilities meet the needs of these children in the selected countries of
study, a primary research question and a number of auxiliary research questions were
generated. In answering these research questions, the point of departure was to establish the
scope and content of concepts surrounding the topic. Chapter two offered a conceptual
framework of alternative care of children with disabilities through the contextualisation of the
terms ‘disability’, ‘alternative care’, and ‘family environment’. This informed the evaluation
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of both the family and non-family based alternative care settings, as well as evaluation of the
principles of necessity and suitability. The purpose of such a discussion was to establish the
scope and a content of concepts used in this study.
Consequently, in Chapter 3 the legal basis for the right to alternative care of children with
disabilities was established by reviewing international and regional human rights instruments,
including the CRC, ACRWC and CRPD. In addition, provisions in the UN Guidelines were
analysed. Chapter 3 further explored how the general principles of the above-mentioned
instruments inform the right to alternative care of children with disabilities. In Chapter 4, the
status of domestic incorporation of international conventions in the two selected countries was
explored. The national legislative and policy measures undertaken by Ethiopia and South
Africa were then discussed and evaluated in relation to international standards. The assessment
in Chapter 5 has dealt with the institutional and administrative measures for the upholding of
the right to alternative care of children with disabilities in Ethiopia and South Africa.
The entirety of this study has led to the production of answers to the research questions, which
will now be presented below.
6.2 Conclusions
Following the discussion of the conceptual framework for the alternative care of children with
disabilities, Chapter 2 answered the first auxiliary research question in part277 as far as it
reiterated the need for a pragmatic approach that informs the distinction between ‘residential
care’ and ‘institutions’. In addition, it established that the principles of necessity and suitability
277 The first sub-question states: ‘What are the obligations imposed on states by the international standards (the CRC, ACRWC and CRPD) in relation to the right to alternative care of children with disabilities, what are the implications of discrepancies or synergies across these instruments, and what minimum standards can be derived?’
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entail that children are placed in alternative care upon genuine evidence that warrants the
former as the most appropriate action other than family support. The chapter has further
emphasised that the suitability principle is underpinned by the shift towards de-
institutionalising the alternative care system and the preference for family-based or family-type
settings.
The discussion in Chapter 3 also dealt with the first auxiliary research question as far as it
established the legal basis for the right to alternative care of children with disabilities in
international and regional standards. With an emphasis on three human rights instruments, that
is the CRC, ACRWC and the CRPD, it was indicated that they jointly impose slightly different
obligations on states in providing for the rights of children with disabilities in general, and the
right to alternative care of children and children with disabilities in particular. A great similarity
is evident between the ACRWC and the CRC. As a point of departure, the fewer similarities in
the CRPD present a higher level of protection to children with disabilities in the context of
alternative care than the CRC and ACRWC. For instance, the CRPD focuses on the use of
community and family-based care options rather than the consideration of institutional care
offered by the CRC and the ACRWC. Furthermore, the CRPD fortified the recognition of
children with disabilities’ right to live in the community. Consequently, the CRPD elevates the
level of protection for children with disabilities deprived of their family environment to enable
them to be provided with alternative care in a setting that facilitates their right to live in the
community and be integrated into society.
It has been observed that the provisions under CRC and the ACRWC dealing specifically with
the rights of children with disabilities show elements of the medical approach to disability,
which in the context of alternative care may validate the institutionalisation of children with
disabilities. The CRPD, however, diverges from the medical model of disability and
strengthens the rights of children with disabilities in the context of alternative care by requiring
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states to ensure that children with disabilities enjoy all human rights and freedoms ‘on an equal
basis with others’. This includes the right to be provided with alternative care within the wider
family, or when that is not possible, within the community in a family setting.
The general principles in the pertinent standards impose more or less the same obligations on
states, but with varying degrees of protection. In relation to the best interests principle in the
context of alternative care, the ACRWC provides stronger protection to children with
disabilities as it requires the principle to be considered not only in the decision to take the child
out of his or her family environment but also in any decision regarding the choice of an
alternative placement. Although both the CRC and the CRPD explicitly prohibit discrimination
on the basis of disability, the latter goes further in requiring the taking of positive measures, as
well as the provision of reasonable accommodation to achieve the substantive equality of
children with disabilities. In doing so, the CRPD elevates the obligation to take positive
measures to ensure that children with disabilities are not discriminated against in alternative
care measures and that they are provided with reasonable accommodation in order to exercise
their rights on an equal basis with others.
It was also established that while the CRC and ACRWC afford children with disabilities the
right to express their views freely and for those views to be given due regard in accordance
with their age and maturity, the potentially restrictive phrases serve as barriers to the children
with disabilities’ right to participation in decision-making. Cases in point are phrases such as
‘capable of forming his or her own views’ in the CRC and ‘capable of communicating his/her
own views’ in the ACRWC. This is particularly concerning as children with disabilities are
commonly excluded from exercising this right as they are wrongly perceived to be incapable
of and/or incompetent to form views and make decisions. The chapter established that, the
CRPD provides a higher level of protection to children with disabilities in respect of the
principle of child participation, as it requires children with disabilities’ views be heard on an
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equal basis with others in accordance with their age and maturity and for them to be provided
with age- and disability-appropriate assistance to realise this right. Moreover, the CRPD adopts
respect for the evolving capacities of children with disabilities as one of its general principles
thereby requiring the principle to inform the interpretation of all rights in the Convention
including the rights of children with disabilities to participate in matters affecting them.
The assessment in Chapter 4 answered the second auxiliary question278 on the compliance of
national legislation with the current human rights standards on the realisation of the rights of
children with disabilities. It was observed that the frameworks in Ethiopia and South Africa
have positive aspects as well as shortcomings that result in both compliance and non-
compliance to certain obligations in international standards.
With regards to provisions relevant to the alternative care of children with disabilities in the
South African Constitution, there is an explicit prohibition of discrimination on the basis of
disability and a requirement that special measures be taken to achieve substantive equality,
hence complying with the CRPD’s stipulations. The Constitution further contains a provision
solely dedicated to the rights of children. Section 28 of the Constitution affords children with
disabilities who are removed from their family environment the right to be provided with
‘appropriate alternative care’. In line with international standards, section 28 also requires that
the best interests of the child be of ‘paramount importance’. However, there is no reference to
children with disabilities in section 28 and there is no provision that deals with the substantive
rights of persons/children with disabilities.
278 The second auxiliary research question states: ‘To what extent are the national legislative frameworks of Ethiopia and South Africa in compliance with current international human rights standards for the realisation of the rights of children with disabilities in the context of alternative care?’
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With regards to the Ethiopia’s Constitution, the study has observed that it complies with
international standards in so far as it affords orphaned children the right to special assistance.
However, the constitutional obligation is limited in scope as it discounts other children who
may be deprived of their family environments due to factors other than the death of parents. In
offering care solutions for orphaned children, the Constitution further singles out institutional
care and adoption but makes no reference to other forms of alternative care. This is in
contradiction to the CRPD, where institutional care is not considered a form of alternative care
for children with disabilities and the focus is on enabling children with disabilities to live in
the community in a family setting when they are deprived of their family environment.
The provision dealing with the rights of children in Ethiopia’s Constitution also affords strong
protection to children by requiring that their best interests be the primary consideration in all
actions affecting them, which is in compliance with the ACRWC. Similar to South Africa’s
section 28, the child-specific provision of Ethiopia’s Constitution also does not make reference
to children with disabilities. It does, however, contain a provision that makes reference to
persons with disabilities which provides for ‘rehabilitation and assistance’ of the ‘physically
and mentally disabled’. This study has established in Chapter 2 that the mere provision of
‘rehabilitation’ and ‘assistance’ is not grounded on the human rights-based model of disability
as reflected in the CRPD which considers children with disabilities as active holders of rights
who are entitled to enjoy their fundamental human rights and freedoms ‘on an equal basis with
others’.
South Africa’s Children’s Act contains a provision solely devoted to the rights of children with
disabilities. This provision regards children with disabilities as active holders of rights who are
entitled to respect for their dignity, self-reliance and participation. Moreover, one of the general
principles of the Children’s Act is the requirement to create an enabling environment for
children with disabilities, which is consistent with the human rights model of disability
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reflected in the CRPD. However, a notable departure from the CRPD is the requirement that
children with disabilities have to be provided with ‘special care’, as opposed to appropriate
alternative care in accordance with the Constitution and international standards. This is a
reflection of the medical model of disability, which encourages and justifies the placement of
children with disabilities in institutions under the guise of providing them with ‘specialised
care’.
Chapter 4 raises the point that the Children’s Act of South Africa offers a range of alternative
care options for children in the provision of foster care, cluster foster care and CYCCs. At its
core, the introduction of a new means of alternative care (in the form of cluster care) ensures
that there are ‘family-like’ options available for the care of children, including children with
disabilities. In principle, the relative desirability of alternative care options in the Children’s
Act demonstrates compliance with the CRC and ACRWC, as it promotes placement in a family
environment and expressly recognises institutional care as a measure of last resort. However,
at the same time, the Act relies on the placement of children with disabilities in a ‘facility’
when they are found to be in need of care provided that it is in their best interests. This
contradicts the CRPD position that children with disabilities should be cared for in a family-
based alternative care setting. It further creates room for the institutionalisation of children with
disabilities and the non-compliance with the CRPD, which does not consider institutional care
as a potential form of alternative care for children with disabilities deprived of their family
environment. Moreover, South Africa’s framework does not comply with the CRPD in that it
does not explicitly provide for the rights of children with disabilities to live in the community.
Further compliance with international standards is evident in the Children’s Act’s identification
of non-discrimination, including the need to ensure protection from disability-based
discrimination, as one of its general principles. It should be recalled that South Africa’s
framework is also in compliance with obligations in the CRPD related to non-discrimination,
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as the PEPUDA clearly prohibits unfair discrimination on the grounds of disability and deems
the failure to provide reasonable accommodation as discrimination on the basis of disability.
With regards to the obligation of child participation, South Africa’s Children’s Act complies
with international standards to the extent that it requires the child’s opinion to be heard and
taken into account in all matters that affect him or her. Nonetheless, the Children’s Act falls
short of fully complying with the obligation in the CRPD as there is no explicit provision that
requires children with disabilities to be provided with age- and disability-appropriate
assistance.
The requirement of periodic review of placements under the Children’s Act subjects the
placement of a child in alternative care to a court order, which will subsequently be supervised
by a designated social worker and subject to reunification services. However, the same
requirement is not extended for a court order placing children with disabilities who are found
to be in need of care in a ‘facility’. This is contrary to the obligation placed on the state under
the CRC to ensure that the placements of children with disabilities in alternative care are
regularly reviewed. Lack of monitoring of placements and the necessary interventions may put
children with disabilities who are placed in CYCCs at risk of neglect and maltreatment.
Unlike the position in South Africa, the RFC of Ethiopia does not place an explicit obligation
on the government to provide alternative care for children including children with disabilities
deprived of their family environment. There is no law that obligates the government to provide
alternative care within the wider family or in the community. The categories of children with
disabilities that are affected include those who are temporarily or permanently deprived of their
family environment or those whose best interests cannot be served by remaining in such an
environment. This gap extends to the lack of laws obligating the government to monitor and
review the placement of children, including children with disabilities, in alternative care or to
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provide institutional care only as a measure of last resort. The Ethiopian legislative framework
also does not contain a provision that affords children with disabilities the right to to live in the
community.
In addition, the best interest standard has not been effected in legislation. First, this standard as
expressed in the RFC is limited in scope and it is not applicable in ‘all actions concerning
children’ in accordance with the country’s Constitution and international standards. Secondly,
the cumulative effect has been the creation of a gap in the existing legal framework due to the
failure to incorporate these principles into domestic laws. One may argue that the there is no
legal basis to ensure that the best interests of children with disabilities are given primary
consideration in alternative care measures in accordance with international standards. The
absence of adequate laws in relation to the principle of the best interests of the child impedes
its implementation.
A similar observation has been made in relation to the obligation of child participation, where
the scope of the provision is limited to only certain issues in the RFC and is not a requirement
in others, such as alternative care. Furthermore, the Ethiopian legislative framework does not
comply with the requirement to provide children with disabilities with disability- and age-
appropriate assistance, as established by the CRPD, as there is no provision to this effect in the
RFC or anywhere else. Thus, the provisions in the RFC in relation to the principle of child
participation are not adequate to ensure the participation of children with disabilities in matters
affecting them, including their participation in alternative care measures on an equal basis with
other children.
Another shortcoming in Ethiopia’s legal framework has to do with the non-discrimination
obligation set forth in the CRPD. It has been established that there is no law in the country that
prohibits discrimination on the basis of disability. The provision of reasonable accommodation
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is incorporated in domestic law only in relation to the employment of persons with disabilities,
while the denial of reasonable accommodation is not regarded as a form of discrimination in
all areas. There is therefore no law that ensures the substantive equality of children with
disabilities in all measures, including alternative care measures. This does not comply with the
obligation to ensure non-discrimination in the CRPD, which states that the denial of
discrimination on the basis of disability in national legislation should be considered as
discrimination.
It has been noted that Ethiopia’s provisions on alternative care of children are found in the
policy framework. This was evident in the National Guidelines that have detailed provisions
on alternative care. In addition, the NCP also contains provisions that promote the provision of
family-based care to children deprived of their family. The Guidelines do not take into account
the specific vulnerabilities of children with disabilities. The shortcoming of the policies and
guidelines lies in their failure to attach legal obligations to the state; their non-binding nature
therefore presents challenges to enforcement, and accountability.
The assessment in Chapter 5 has dealt with the institutional and administrative measures in the
upholding of the right of children with disabilities in the context of alternative care in Ethiopia
and South Africa. Following this assessment, it was found that there are various challenges
beyond the legislative and policy framework that impede the effective implementation of the
right to alternative care of children with disabilities in both countries. For instance, in South
Africa, despite the existence of adequate standards and mechanisms, these are poorly enforced.
The weak capacity of the DSD affects the application of the suitability principle in the
realisation of the rights of children with disabilities in alternative care measures. In Ethiopia,
the role of MOWCYA and MOLSA in ensuring that the suitability of alternative care options
for children with disabilities are found and that such placements remain suitable is stifled by
logistical limitations. In both countries, there is a low level of monitoring and oversight of
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alternative care placements. In Ethiopia, there is a low centralisation of alternative care and
the subsequent emergence of various private players. This presents a challenge in ensuring the
suitability of alternative care for children with disabilities and in maintaining the requisite
standards set forth in international instruments, such as of non-discrimination, the best interests
of the child, and regular review of placement.
In addition to these challenges, some data gaps are evident in both countries in terms of the
number of children with disabilities in general and the number of children with disabilities in
alternative care in particular. The lack of a legal definition of disability that reflects the human
rights model of disability creates a perspective of tainted data that affects any engagements
with the suitability principle. The cumulative effect of this has been the lack of disaggregated
data on the number of children with disabilities in alternative care that is necessary to ensure
the suitability of such care.
It has been further established that current funding arrangements for alternative care in both
countries are inadequate. Although in South Africa the government is the main source of
funding for alternative care, the funding is insufficient to ensure the suitability of alternative
care and the safety, development and well-being of children with disabilities. In contrast,
Ethiopia’s challenges are distinctively different from South Africa’s inasmuch as the
government is not the main source of funding and hence lacks the power to shape the quality
and quantity of services provided to children in alternative care. This has, in turn, undermined
its ability to develop effective interventions by way of redirecting financial resources to the
development of family-based alternatives. Another challenge in both countries relates to
shortages of skilled personnel and a lack of training of those involved in the provision of
alternative care services. This makes it difficult to ensure the suitability of alternative care to
children with disabilities.
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Furthermore, CSOs and NPOs in both countries face challenges due to the nature of the legal
regimes. It has been shown that in South Africa, the DSD assigns the provision of the majority
of alternative care services to NPOs. This assignment is tagged to funding from the South
African government, a missing link in the government-CSO relationship in Ethiopia. The
stakeholders still face the challenge of inadequate funding to cover costs, which raises
sustainability and quality of service issues. The compromised quality of care in Ethiopia was
due to the now repealed CSO law which restricted the terms of registration, amount of funds
that CSOs received from external sources, and restriction on the activities that the CSOs were
able to be involved in. The adoption of a new CSO law in Ethiopia is certainly a move in the
right direction to ensure the implementation of the rights guaranteed in international standards,
as well as domestic laws, and will undoubtedly improve the quality and widen the scope of
services to children with disabilities, including alternative care.
With regards to independent human rights mechanisms in the two countries, while South Africa
has gone ahead to provide for the appointment of office-bearers on a national and provincial
level, Ethiopia suffers from a lack of knowledge about the duties and obligations of these
mechanisms. In South Africa, there have been positive steps at the provincial level with the
enactment of the Western Cape Commission of Children’s Act, which presents an opportunity
to ensure that children’s issues are not side-lined. The specificity of the Commissioner’s
mandate in the Act is commendable and necessary to ensure that the mandate of the
Commissioner extends to monitoring the suitability of alternative care placements for children
with disabilities.
Finally, on a broader level, there is uncertainty in relation to the domestic incorporation of
international treaties ratified by Ethiopia and their subsequent implementation. There is no
consensus on whether international treaties can be applied directly by domestic courts or if
publication in the official Negarit Gazette is a precondition. Furthermore, it has been
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emphasised that the failure to translate, publish and disseminate international treaties is a major
challenge, which negatively impacts the implementation of the right to alternative care of
children with disabilities set forth in international and regional standards.
6.3 Recommendations
6.3.1 Ethiopia
As shown above, there are several gaps in the Ethiopian legislative framework that may impede
the realisation of the rights of children with disabilities to obtain suitable alternative care. One
way to address such gaps could be by making several amendments to existing legislation which
would include key provisions to protect the rights of children with disabilities in the context of
alternative care. These provisions are found in international standards, but are missing in the
national legislative framework.
In order to remedy the lack of explicit and comprehensive provisions on the alternative care
of children with disabilities, an amendment to the RFC has to be made. The content of the
amendment should speak to the placing of an obligation on the government to ensure that
children, including children with disabilities who are temporarily or permanently deprived of
their family environment, are provided with alternative care within the community in a family
setting, and given special protection and assistance.
Moreover, the lack of domestic law placing an obligation on the government to regularly
review the placement of children including children with disabilities in alternative care, should
be remedied. The RFC should be amended as to include a provision to this effect which should
extend to both state-run and private care settings, services and facilities. Thus, the placements
of children with disabilities in foster families or institutions (regardless of whether this care is
provided by a competent state authority or by a private body) should be periodically reviewed
to monitor each child’s well-being and protection from all forms of abuse or neglect.
246
Furthermore, it is recommended that the government should consider amending the RFC in
order to revoke the ban on intercountry adoption to ensure the availability of a range of family-
based alternatives for children including children with disabilities deprived of their family
environment. It is recommended that the government instead reform the current system and
create the necessary infrastructure for the system to function efficiently.
In respect of provisions on the four General Principles in the Ethiopian legislative framework,
first, it is recommended that a non-discrimination clause be included that explicitly prohibits
discrimination on the basis of disability and recognises that special measures may be needed
to achieve the substantive equality of children with disabilities. To further enhance this right,
there should be explicit recognition in the overall legislative framework that failure to provide
reasonable accommodation for children with disabilities amounts to discrimination on the basis
of disability. This move will address the other significant gaps that exist in the RFC in relation
to various provisions, such as the right to participate and to consider the children’s best
interests as the primary consideration.
Secondly, the lack of an explicit and comprehensive provision that requires the government
and private actors to consider the best interests of the child in all actions affecting them in
subsequent legislation creates a major gap in the law. Thus, it is recommended that the RFC be
revised to explicitly provide for the best interests of the child, including children with
disabilities, to be the primary consideration in all actions concerning them. This will inform
the practical inculcation of the best interests of children in all matters that affect them, including
alternative care measures.
Thirdly, the limited scope of the RFC’s provision concerning child participation should be
addressed by including a provision that requires that the views of children, including children
with disabilities, to be heard and given due consideration in accordance with their age and
247
maturity in all matters concerning them. On the same note, it is further important to explicitly
include a requirement to provide age- and disability-appropriate assistance to children with
disabilities in order for them to express their views on an equal basis with other children and
participate in the decision-making processes regarding their care.
Fourthly, the lack of an explicit right of children in general and children with disabilities in
particular to life, survival and development should be remedied by amending the RFC in order
to include a provision to that effect.
Another approach to redress the gaps in the Ethiopian legislative framework beyond the
amendment of the RFC could be through the adoption of a comprehensive children’s code that
incorporates the provisions of the CRC, ACRWC and the child-specific provisions in the
CRPD. This study has established that the CRPD affords children with disabilities with a
number of rights concerning their alternative care. However, the majority of these rights are
not incorporated into the RFC or are not part of Ethiopia’s overall legislative framework. More
importantly, there is no provision that requires for children including children with disabilities
to be provided with alternative care within the community in a family setting. Thus, the
adoption of a children’s code is more appealing and crucial considering that the RFC barely
provides for the rights of children with disabilities in general and their right to alternative care
in particular. The drafting of such a code should further be informed by the provisions of the
CRPD as well as the UN Guidelines. Such a code should further incorporate the provisions in
the National Guidelines that are conducive to the rights of children with disabilities in the
context of alternative care.
Furthermore, this study has shown that a medical-based approach to disability is evident in
Ethiopia’s legislative framework. A comprehensive revision of the overall legislative
framework is recommended to bring it in alignment with the current notion of the rights of
248
persons with disabilities and to reflect the human rights-based model of disability. This could
be remedied by adopting a disability legislation which incorporates the CRPD’s provisions
dealing with the rights of children with disabilities. Nonetheless, regardless of the approach
taken to provide for the rights of children with disabilities, i.e. through the adoption of a
separate disability legislation, a children’s code or amending existing legislation, such as the
RFC, it is important to ensure that their rights are not ignored.
With regards to implementation challenges, it is recommended that mutual consultation,
collaboration and coordination among the ministries and government organisations working
with children’s and disability issues be enhanced. The establishment of coordinating
mechanisms are instructive to the success of obtaining suitable care options for children with
disabilities deprived of their family environment and to ensure that institutions are not
identified as a common recourse for such children. The current alternative care system demands
the re-establishment of a system resembling the now inoperative Ethiopian Alternative
Childcare Network to address the overall lack of coordination, information-sharing and synergy
among the various actors working to improve alternative care for such children. This study has
also highlighted the importance of governmental cooperation with CSOs in the facilitation, and
monitoring and coordination of alternative care through ensuring that there is accountability
and transparency in measures concerning the alternative care of children with disabilities.
It is further recommended that the government consider devising a system to strengthen
standards for the regulation of alternative care settings that are both state-run and privately
operated. The MOWCYA should take measures to effectively fulfil its responsibilities by, inter
alia, raising awareness of its mandate among agencies providing alternative care services in the
country. To this end, it is proposed that MOWCYA devise a system of coordination among all
levels of government to strengthen standards for the regulation of alternative care settings and
to ensure adherence to the requirements of the necessity and suitability of these placements.
249
The government should consider the recommendations of the CRC Committee and ensure that
the MOWCYA is sufficiently resourced, both in human capital and financial terms, so that it
can better discharge its duties. It is recommended that the government, as the primary duty-
bearer, reinforce its authority and oversight over the alternative care system.
It is further recommended that the government ensure that private alternative care service
providers exercise non-discrimination and equality norms in relation to children with
disabilities. There need to be a mechanism in place to guard against discrimination on the basis
of disability within alternative care services, including those run by the non-state sector. It is
further recommended that the government raise awareness among funders, including faith-
based organisations, about the consequences of their practices that are detrimental to children.
Furthermore, it is proposed that the government ensure that effective systems of data collection
are available for children, including children with disabilities, deprived of their family
environment or at risk of losing it. The government should put in place a system to collect
disaggregated data on the number of children, including children with disabilities in alternative
care settings (including child and youth care centres), as well as on the duration of placement
and the frequency of its review. Data should not just include information on the number of
children living in different forms of alternative care at a given time but also the pattern of their
movement into and out of such care settings. The data should be disaggregated by the nature
and type of impairment, age, sex, and any other category considered appropriate. In this respect,
it is proposed that the government adopt a legal definition of disability that is in line with the
human-rights model of disability.
It is further recommended that information on the work of agencies (both private and
governmental) providing alternative care services in the country be gathered and made
available.
250
It is recommended that disability issues are mainstreamed into the work of the EHRC and that
and a focal point is assigned to address concerns specific to children with disabilities. The
training of experts on disability issues is crucial to ensure that they have the necessary skills to
investigate rights violations, and to advocate for law, policy and programme reforms to enhance
the protection of children in alternative care in line with international accepted standards.
It is further recommended that an independent children’s commissioner with a specific mandate
to monitor children’s rights, including the rights of children with disabilities in alternative care,
be assigned. Such commissioner would have a mandate to raise awareness on disability issues
to curb the stigmatisation of children with disabilities and to advocate for a review of
discriminatory laws. These initiatives are particularly important in Ethiopia where a negative
attitude towards children with disabilities is prevalent, which in turn may lead to them being
separated from parents and placed in alternative care. Moreover, by advocating and making
recommendations for the review of discriminatory laws, such a commission would have the
ability to ensure that children with disabilities are not discriminated against, are not routinely
placed in institutional care, and have equal access to family-based alternative care.
6.3.2 South Africa
In respect of South Africa, the study has found that the legislative framework contains
extensive provisions for the protection of the rights of children with disabilities in the context
of alternative care and complies with international standards to a large extent. However, there
are a number of gaps which need to addressed to ensure full compliance with international
standards. First, the Children’s Act, in providing specifically for the rights of children with
disabilities in section 11(1)(a), reveals some elements of the medical model of disability by
including the phrase ‘special care’ in the list of alternative care options that may be appropriate
for children with disabilities. It is recommended that the disability-specific provision in the
Children’s Act be revised to incorporate the language of the CRPD, which requires that
251
children with disabilities be provided with alternative care within the wider family or within
the community in a family setting. In this regard, the term ‘special care’ should be replaced
with a term that emphasises the rights of children with disabilities to be cared for in the
community in a family setting.
Secondly, the Children’s Act allows the court to order the placement of children with
disabilities in a ‘facility’ if it finds that a child who is in need of care and protection has a
physical or mental disability and if it is in the best interests of the child to be cared for in such
a setting. However, this is contrary to the CRPD, which has at its core the promotion of
community living and inclusion of children with disabilities. The CRPD further requires that
the alternative care of children with disabilities be provided in a family setting and not in a
‘facility’. This sub-section as it currently stands runs the risk of encouraging the
institutionalisation of children with disabilities. Thus, it is recommended that this provision be
revised not to give discretion to the court to place children with disabilities in institutional care
and rather to shift the focus to providing children with disabilities with family-based alternative
care.
Thirdly, in respect of the provision on child participation, it is recommended that section 10 of
the Children’s Act be amended to expressly require age- and disability-appropriate assistance
for children with disabilities to facilitate their participation in all actions concerning them in
accordance with their age and maturity. Such a provision would serve to facilitate their
participation in the decision-making process relating to their care.
In addition to the gaps in the legislative framework, there are several implementation
challenges hindering the realisation of the rights of children with disabilities in the context of
alternative care in South Africa. To address such challenges, it is recommended that the
government create a system for the collection of up-to-date, accurate and reliable disaggregated
252
data on children with disabilities to, inter alia, identify discrimination or disparities in the
realisation of their rights. Accurate and up-to-date disaggregated data are also useful to enable
the government to formulate and implement policies to give effect to the obligations set forth
in the CRC, ACRWC and the CRPD in relation to the rights of children with disabilities, in
particular their right to suitable alternative care. It is further recommended that the government
devise a system to collect disaggregated data on the number and percentage of children,
including children with disabilities, in alternative care settings, as well as on the duration of
their placement and the frequency of its review. Data should include information on children,
including children with disabilities, reunited with their parents after placement in alternative
care. The data should be disaggregated by the nature and type of impairment, age, sex, and any
other category considered appropriate.
It is recommended that the South African government put in place an appropriate multi-sectoral
coordinating mechanism involving both private and state-run organisations to ensure that
available resources are effectively used for the implementation of the rights of children in
general and children with disabilities in particular.
It is further recommended that the government take the necessary measures to build the
capacity of the relevant professionals to enable them to be better equipped to provide care that
meets the needs of children including children with disabilities deprived of their family
environment. It is suggested that the government follow the recommendations of the CRC
Committee and ensure that organisations in charge of the foster placement of children avail the
necessary training and support to potentially suitable families to ensure that they can provide
proper care for children with disabilities.
Finally, it is recommended that the government assigns a national children’s commissioner
who is adequately resourced with an explicit mandate that corresponds to the UN Guidelines
253
and monitors the suitability and necessity of the placement of children, including children with
disabilities at the national level to strengthen and complement the work being done at a
provincial level in South Africa.
254
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